Legislature(2003 - 2004)

02/20/2004 03:35 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                       February 20, 2004                                                                                        
                           3:35 p.m.                                                                                            
                                                                                                                                
TAPE(S) 04-12, 13                                                                                                             
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Scott Ogan, Chair                                                                                                       
Senator Thomas Wagoner, Vice Chair                                                                                              
Senator Fred Dyson                                                                                                              
Senator Ralph Seekins                                                                                                           
Senator Ben Stevens                                                                                                             
Senator Kim Elton                                                                                                               
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
SENATE JOINT RESOLUTION NO. 26                                                                                                  
Requesting the  United States Department  of the Interior  and the                                                              
United  States Department  of Justice  to appeal  the decision  of                                                              
the United  States Court of Appeals  for the Ninth Circuit  in The                                                              
Wilderness  Society v.  United States  Fish  and Wildlife  Service                                                              
and to seek  an emergency stay  of the decision pending  an appeal                                                              
of the decision to the United States Supreme Court.                                                                             
                                                                                                                                
     MOVED CSSJR 26(RES) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE BILL NO. 303                                                                                                             
"An Act  relating to  the Big Game  Commercial Services  Board and                                                              
to   the   regulation   of   big   game   hunting   services   and                                                              
transportation services; and providing for an effective date."                                                                  
                                                                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                              
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                              
BILL: SJR 26                                                                                                                  
SHORT TITLE: APPEAL WILDERNESS SOCIETY V U.S. F.&W.                                                                             
SPONSOR(s): SENATOR(s) WAGONER                                                                                                  
                                                                                                                                
02/06/04       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/06/04       (S)       RES                                                                                                    
02/20/04       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
                                                                                                                                
BILL: SB 303                                                                                                                  
SHORT TITLE: BIG GAME GUIDE BOARD & SERVICES                                                                                    
SPONSOR(s): RULES BY REQUEST OF LEG BUDGET & AUDIT                                                                              
                                                                                                                                
02/06/04       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/06/04       (S)       RES, FIN                                                                                               
02/20/04       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Ms. Amy Seitz                                                                                                                   
Staff to Senator Wagoner                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SJR 26 for the sponsor.                                                                      
                                                                                                                                
Mr. Ron Somerville, Resources Consultant                                                                                        
House and Senate Majority                                                                                                       
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Supports SJR 26 and SB 303.                                                                               
                                                                                                                                
Mr. Wayne Regelin, Deputy Commissioner                                                                                          
Department of Fish & Game                                                                                                       
PO Box 25526                                                                                                                    
Juneau, AK  99802-5226                                                                                                          
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Mr. Ted Popely                                                                                                                  
Counsel for the Majority                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SJR 26.                                                                                      
                                                                                                                                
Mr. John French                                                                                                                 
     th                                                                                                                         
506 4 Ave.                                                                                                                      
Seward AK                                                                                                                       
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Mr. Drew Sparlin                                                                                                                
Cook Inlet Aquaculture Association (CIAA)                                                                                       
Kenai AK                                                                                                                        
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Mr. Paul Shadura, President                                                                                                     
Kenai Peninsula Fisherman's Association (KPFA)                                                                                  
Kenai AK                                                                                                                        
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Mr. Roland Maw                                                                                                                  
United Cook Inlet Drift Association                                                                                             
Kasilof AK                                                                                                                      
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Mr. Ken Duckett                                                                                                                 
United Southeast Alaska Gillnetters                                                                                             
POSITION STATEMENT: Supports SJR 26.                                                                                          
                                                                                                                                
Representative Ralph Samuels                                                                                                    
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 303.                                                                                      
                                                                                                                                
Mr. Joe Klutsch                                                                                                                 
Alaska Professional Hunters Association                                                                                         
PO Box 91932                                                                                                                    
Anchorage AK 99509                                                                                                              
POSITION STATEMENT: Supports SB 303.                                                                                          
                                                                                                                                
Mr. Paul Johnson                                                                                                                
Juneau AK                                                                                                                       
POSITION STATEMENT: Supports SB 303.                                                                                          
                                                                                                                                
Mr. Matt Robus, Director                                                                                                        
Division of Wildlife Conservation                                                                                               
Department of Fish & Game                                                                                                       
PO Box 25526                                                                                                                    
Juneau AK  99802-5226                                                                                                           
POSITION STATEMENT: Commented on SB 303.                                                                                      
                                                                                                                                
Mr. Rob Hardy                                                                                                                   
Wasilla AK 99687                                                                                                                
POSITION STATEMENT: Opposes SB 303.                                                                                           
                                                                                                                                
Mr. Henry Webb                                                                                                                  
Staff to Representative Ralph Samuels                                                                                           
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 303 for the sponsor.                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-12, SIDE A                                                                                                            
                                                                                                                                
         SJR 26-APPEAL WILDERNESS SOCIETY V U.S. F.&W.                                                                      
                                                                                                                                
CHAIR SCOTT  OGAN called the  Senate Resources Standing  Committee                                                            
meeting  to  order  at 3:35  p.m.  Present  were  Senators  Thomas                                                              
Wagoner, Ben  Stevens, Fred  Dyson, Ralph  Seekins, Kim  Elton and                                                              
Chair  Scott Ogan.  Senator Georgianna  Lincoln  was excused.  The                                                              
first order of business to come before the committee was SJR 26.                                                                
                                                                                                                                
MS. AMY SEITZ, Staff  to Senator Wagoner, sponsor of  SJR 26, said                                                              
the  resolution  requests  the  Department  of  Interior  and  the                                                              
Department  of Justice to  appeal the  decision the Ninth  Circuit                                                              
Court made  on December 30 saying  that the Tustumena  Lake Salmon                                                              
Enhancement Project was in violation of the 1964 Wilderness Act.                                                                
                                                                                                                                
The  enhancement  project  started  30  years ago  as  a  research                                                              
project  conducted  by the  Alaska  Department  of Fish  and  Game                                                              
(ADF&G).  In  1993,   it  was  turned  over  to   the  Cook  Inlet                                                              
Aquaculture  Association  (CIAA), a  non-profit,  that takes  eggs                                                              
from  salmon returning  to Tustumena  Lake and  incubates them  at                                                              
the Trail Lakes  Hatchery at Moose Pass. In early  spring of every                                                              
year,  the salmon fry  are returned  to Tustumena  Lake to  follow                                                              
the rest  of their regular  cycle in Cook  Inlet. The  project has                                                              
been jointly assessed  a number of times by the CIAA  and the U.S.                                                              
Fish and Wildlife  Service. The Wilderness Act  Consistency Review                                                              
found that the  project doesn't conflict with the  1964 Wilderness                                                              
Act  since it's  not  a commercial  enterprise.  A District  Court                                                              
decision also  stated the project  is not a commercial  enterprise                                                              
and does not  conflict with the 1964 Wilderness  Act. However, the                                                              
Ninth  Circuit Court,  on December  30, reversed  the decision  of                                                              
the  District   Court  saying   the  project   does  violate   the                                                              
Wilderness Act  by being a  commercial enterprise and  offends its                                                              
mandate  to preserve  the natural  conditions that  are a  part of                                                              
the  wilderness   character  of  the  Kenai  wilderness.   SJR  26                                                              
requests  that decision  be appealed  so  the enhancement  project                                                              
can continue.  It also  asks the  Department  of Interior  and the                                                              
Department  of  Justice  to  request   a  temporary  stay  of  the                                                              
decision so the 6 million hatchery fry are not terminated.                                                                      
                                                                                                                                
CHAIR OGAN asked where the hatchery is located.                                                                                 
                                                                                                                                
MS. SEITZ replied in Moose Pass.                                                                                                
                                                                                                                                
CHAIR OGAN  pondered aloud the  concept of hatchery  fish swimming                                                              
in the river violating  the wilderness quality of the  area. "Am I                                                              
missing something here?"                                                                                                        
                                                                                                                                
MS. SEITZ nodded agreement.                                                                                                     
                                                                                                                                
SENATOR  THOMAS WAGONER  corrected him  saying that  the fish  are                                                              
swimming in a lake,  not a river. He explained  that basically, if                                                              
the 6  million fry can't  be put back  into the system  from which                                                              
they came  or another lake  isn't found to  put them in, a  lot of                                                              
money and fry would be wasted.                                                                                                  
                                                                                                                                
CHAIR  OGAN  groaned, "I'm  sorry,  the  Ninth Circuit  drives  me                                                              
nuts, sometimes. You can put that on the record."                                                                               
                                                                                                                                
SENATOR RALPH  SEEKINS asked  if Tustumena  Lake was withdrawn  by                                                              
the federal government prior to statehood.                                                                                      
                                                                                                                                
MS. SEITZ replied that it would have been made a refuge in 1964.                                                                
                                                                                                                                
SENATOR SEEKINS said:                                                                                                           
                                                                                                                                
     As I  understand the  Equal Footing Doctrine,  Submerged                                                                   
     Lands Act,  unless it was  reserved prior to  statehood,                                                                   
     that's  a state navigable  waterway  and not subject  to                                                                   
     federal  jurisdiction. Under  the  Submerged Lands  Act,                                                                   
     it  would  be  subject  to  state  management.  I  don't                                                                   
     understand how  the federal government with an  act that                                                                   
     came into  play after statehood  has somehow  or another                                                                   
     changed  the  nature,  the management  structure,  of  a                                                                   
     state-owned navigable waterway.                                                                                            
                                                                                                                                
CHAIR OGAN  responded, "Possibly  by asserting the  Reserved Water                                                              
Rights   Doctrine...that's  probably   a  question   to  ask   the                                                              
attorneys."                                                                                                                     
                                                                                                                                
SENATOR  WAGONER maintained  that  the area  was withdrawn  before                                                              
statehood and  was known as the  Kenai Moose Range. The  Range was                                                              
a federal  reserve dedicated  to the  continuation of  the species                                                              
of the Kenai  moose. He didn't know  how that would mesh  with the                                                              
state's navigable water issues.                                                                                                 
                                                                                                                                
SENATOR SEEKINS  asked if  the waterways  were withdrawn  when the                                                              
Kenai Moose Range was established.                                                                                              
                                                                                                                                
MR.  RON  SOMERVILLE,  Resources   Consultant,  House  and  Senate                                                              
Majority, affirmed  that the Kenai  Moose Range was  created prior                                                              
to  statehood, but  added  that litigation  in  the Ninth  Circuit                                                              
Court  still  occurs  over  whether  or  not  those  pre-statehood                                                              
withdrawals included  tide and submerged lands. The  Ninth Circuit                                                              
has  said  unless  Congress  makes   it  very  clear  that  it  is                                                              
withdrawing something  when a state  becomes a state,  transfer of                                                              
submerged lands  to the state  is precluded -  and this is  one of                                                              
those areas.                                                                                                                    
                                                                                                                                
     The Ninth  Circuit has  been all over  the wall  with us                                                                   
     when it comes to the state's rights.                                                                                       
                                                                                                                                
     There  are two things.  One is  the Wilderness Area  was                                                                   
     created  in 1980,  actually, when  ANILCA passed,  which                                                                   
     included  the Tustumena  - was part  of that  Wilderness                                                                   
     Act.  It's also  one of  those areas  like the  boundary                                                                   
     waters   where,   in  fact,   the   federal   government                                                                   
     exercises  the authority  given  to them  by Congress  -                                                                   
     the  agency  does  - to  regulate  activities  on  state                                                                   
     navigable waters,  because they own the  adjacent lands.                                                                   
     I mean  that's what  the federal  agencies are  claiming                                                                   
     in  these  cases.  That's   apparently  what  the  Ninth                                                                   
     Circuit kind  of leaned on  to.... They are  saying that                                                                   
     the Wilderness  Act, itself,  has a provision  that says                                                                   
     if   [tide  and  submerged  lands]  become part  of  the                                                                   
     Wilderness Act  System, which was created in  1964, that                                                                   
     it precludes  commercial activities, except  for certain                                                                   
     recreational and other activities that are exempted.                                                                       
                                                                                                                                
SENATOR SEEKINS related  that the Utah case said  withdrawals have                                                              
to be very clear.                                                                                                               
                                                                                                                                
MR. SOMERVILLE  agreed  and surmised  that since  this area  was a                                                              
pre-statehood  withdrawal,   federal  agencies  and   courts  have                                                              
liberally  interpreted their  authority to  manage lands  that are                                                              
adjacent  to  theirs  when  they,   in  fact,  may  only  own  the                                                              
submerged lands, which haven't been litigated.                                                                                  
                                                                                                                                
CHAIR OGAN said  that the Anchorage Daily News  reported that this                                                              
particular lawsuit  was brought by the Wilderness  Society and the                                                              
Alaska Center for the Environment.                                                                                              
                                                                                                                                
SENATOR  KIM ELTON  asked if  the appeal  needs to  be filed  in a                                                              
certain timeframe and is that a concern.                                                                                        
                                                                                                                                
SENATOR WAGONER  reminded the committee  that one of  the critical                                                              
times is the smolt release.                                                                                                     
                                                                                                                                
     I think it's  going to be done. The problem  is that the                                                                   
     State  of Alaska doesn't  have the  authority to  do it;                                                                   
     we had to have a federal official file the appeal.                                                                         
                                                                                                                                
CHAIR  OGAN wistfully  jested, "You're  welcome to  stick them  in                                                              
Big Lake."                                                                                                                      
                                                                                                                                
SENATOR ELTON  pointed out the date  of the decision  was December                                                              
30, 2003 and asked when the smolts are to be put into the lake.                                                                 
                                                                                                                                
SENATOR WAGONER replied  that the date isn't critical,  but if the                                                              
fry  can't be  put  in Tustumena  Lake,  permits  for other  lakes                                                              
would  be needed from  ADF&G. "You  can't just  take salmon  smolt                                                              
out and dump  them in any lake."  An appeal can be filed  up to 90                                                              
days from the date of the decision.                                                                                             
                                                                                                                                
SENATOR  ELTON  asked,  "Aren't there  genetic  requirements?  You                                                              
can't just  take those  smolt and dump  them into another  system,                                                              
can you?"                                                                                                                       
                                                                                                                                
SENATOR WAGONER  replied that ADF&G  has to permit  another system                                                              
in which to release the smolt.                                                                                                  
                                                                                                                                
SENATOR SEEKINS  asked what this  decision would do  to ecotourism                                                              
and commercial activities other than fishing.                                                                                   
                                                                                                                                
MR. SOMERVILLE  reiterated that  the Wilderness  Act does  have an                                                              
exemption for  recreational activities  and the argument  could be                                                              
made  that salmon  enhancement is  not commercial.  He noted  that                                                              
Bill  Horn,  attorney  for the  majority,  expressed  his  concern                                                              
that  the  courts  didn't  clearly   indicate  whether  commercial                                                              
activities relate  to commercial fishing only or  to projects like                                                              
this. Mr.  Horn maintains that  the recreational  exemption needed                                                              
to  be clarified  or  commercial  activities like  ecotourism  and                                                              
guiding could be illegal.                                                                                                       
                                                                                                                                
SENATOR WAGONER  said it  is estimated that  the 6 million  salmon                                                              
fry will return 100,000 fish to be used by all groups.                                                                          
                                                                                                                                
     This  isn't a  commercial enterprise;  this  is done  by                                                                   
     Cook  Inlet Aquaculture  as an  enhancement. Those  fish                                                                   
     come  through the gillnet  system, set  nets, and  drift                                                                   
     gillnets. They  come into a personal use net  fishery in                                                                   
     the  mouth  of  the  Kasilof  River  for  personal  use,                                                                   
     sometimes  a  dip  net fishery;  in  addition  to  that,                                                                   
     there's  a sport fishery.  It's becoming  a very  viable                                                                   
     sport fishery.  So, it's  a multiple use  and as  much a                                                                   
     recreational use  as it is a commercial use.  That's the                                                                   
     way   that  aquaculture   basically  operates.   They're                                                                   
     funded  100  percent by  commercial  funds, but  at  the                                                                   
     same time  - I can't  totally speak for the  aquaculture                                                                   
     association,  but  I  was  one  of  the  original  board                                                                   
     members founding  it - and  at that time our  philosophy                                                                   
     was,   'If  we  can't   bring  the   fish  through   the                                                                   
     commercial area  and into sports fishing areas,  then it                                                                   
     wasn't a  project that we really  wanted to spend  a lot                                                                   
     of time and  effort on.' And that's pretty  well the way                                                                   
     that  Cook  Inlet has  gone,  if  you  look at  all  the                                                                   
     projects Cook Inlet does....                                                                                               
                                                                                                                                
CHAIR  OGAN  said he  wanted  to  move  this  bill as  quickly  as                                                              
possible  so  that he  could  tell  the  Energy  Council it  is  a                                                              
priority issue.                                                                                                                 
                                                                                                                                
3:55 p.m.                                                                                                                       
                                                                                                                                
MR.  SOMERVILLE summarized  that  quite a  bit has  been going  on                                                              
including a  request from the Speaker  of the House  and President                                                              
of the  Senate to Secretary  Norton and Attorney  General Ashcroft                                                              
asking  them to  appeal this  case.  Governor Murkowski,  Attorney                                                              
General Renkes  and other aquaculture associations  have requested                                                              
an appeal,  as well. The initial  reaction from the  Department of                                                              
Interior is that  this one issue is no big deal  and  only applies                                                              
to one lake  in Alaska. However,  Mr. Somerville  noted  an e-mail                                                              
from another state  saying the Ninth Circuit  interpretation could                                                              
be a problem for it, as well.                                                                                                   
                                                                                                                                
CHAIR OGAN asked how the salmon fry are released.                                                                               
                                                                                                                                
SENATOR WAGONER  explained that the  fry are transported  by truck                                                              
to the lake, taken  on a boat away from the mouth  of the lake and                                                              
released. Predation  by trout  would be  pretty horrendous  if the                                                              
fry were released near the mouth.                                                                                               
                                                                                                                                
MR. WAYNE  REGELIN, Deputy  Commissioner,  Department of  Fish and                                                              
Game  (ADF&G), said  the administration  supports the  resolution.                                                              
He  had  some  language  suggestions   that  would  make  it  more                                                              
accurate and powerful.  He said that actually this  issue has gone                                                              
to the  Ninth Circuit  two times.  The first  time, a  three-judge                                                              
panel upheld the  District Court ruling, which was  appealed to an                                                              
en banc group [the  entire group] of 11 judges  who overturned it.                                                              
He  thought the  committee  might  want to  insert  a new  whereas                                                              
clause stating  that and  that the  first decision  was made  by a                                                              
vote of two  to one and the last  decision was made by  an en banc                                                              
vote of 11 to zero.                                                                                                             
                                                                                                                                
     Part of  the reason was they  never took up  ANILCA (the                                                                   
     Alaska Native  Interest Land  Claims Settlement  Act). I                                                                   
     think  this 11-judge  panel totally  ignored all of  the                                                                   
     provisions  of ANILCA  that  allow preexisting  uses  to                                                                   
     continue -  and I think  that you  might want to  put in                                                                   
     on page  2, line  20, something  about that.... But  the                                                                   
     court   ruled   that   the   stocking   program   didn't                                                                   
     compromise  the wilderness  values that they  prohibited                                                                   
     [if] it  was commercial. The commercial  activity occurs                                                                   
     way down stream off of the wilderness area.                                                                                
                                                                                                                                
He suggested  making the first resolve  clause on page  2 a little                                                              
more general than  just appeal to the Supreme Court.  He felt that                                                              
the Department of  Justice did not want to take this  issue to the                                                              
Supreme Court,  although taking the  same issue back to  the Ninth                                                              
Circuit  would be unusual  after  11 judges ruled  against  it. He                                                              
reiterated that the  court totally ignored all  the provisions and                                                              
protections that ANILCA offered in 1980.                                                                                        
                                                                                                                                
MR.  REGELIN updated  the committee  that  The Wilderness  Society                                                              
has decided  it doesn't want  to be blamed  for killing  6 million                                                              
fish  and has  asked  for a  meeting with  the  Fish and  Wildlife                                                              
Service  and other  people to  see if  the smolt  can be put  back                                                              
into  Tustumena  Lake one  more  time.  He  thought the  Fish  and                                                              
Wildlife Service would probably do that.                                                                                        
                                                                                                                                
     But  we don't  want this  to  be just  a one-time  thing                                                                   
     about  6 million fish;  we want  the whole thing  fixed,                                                                   
     because  it's  a  very  onerous  decision,  we  feel....                                                                   
     Secretary  of   Interior  Norton  has  never   been  the                                                                   
     problem.  She   has  agreed   with  us  from   the  very                                                                   
     beginning.   It's   the  Solicitor   General   that   is                                                                   
     reluctant to  do this and his staff, because  they don't                                                                   
     feel  it's a broad  enough  case for them  to appeal  to                                                                   
     the Supreme Court.                                                                                                         
                                                                                                                                
MR.  REGELIN  offered the  committee  a  few wording  changes  for                                                              
their review.                                                                                                                   
                                                                                                                                
CHAIR OGAN asked him to read the changes into the record.                                                                       
                                                                                                                                
MR.  REGELIN   began  by   suggesting  the  following   conceptual                                                              
amendments:                                                                                                                     
                                                                                                                                
     1) Add a new whereas clause on page 1, line 14, that would                                                                 
     say, "Whereas a three-judge panel of the Ninth Circuit                                                                     
     affirmed the decision of the District Court"                                                                               
                                                                                                                                
     2) Insert "eleven-person panel" on page 1, line 14                                                                         
                                                                                                                                
     3) Insert "the Ninth Circuit concluded that the stocking of                                                                
     salmon fry did not compromise wilderness values, yet they                                                                  
     ruled to prohibit the action on page 2, line 20                                                                            
                                                                                                                                
     4) Insert "or to the full panel of the Supreme Court" after                                                                
     "Ninth Circuit" on page 2, line 30                                                                                         
                                                                                                                                
CHAIR OGAN  asked if the Department  of Law had a position  on the                                                              
proposed amendments.                                                                                                            
                                                                                                                                
MR. REGELIN  replied that he  hadn't had time  to do that,  but he                                                              
had been working  with them since this situation  began and didn't                                                              
think any of the legal issues had changed.                                                                                      
                                                                                                                                
MR. TED  POPELY, Counsel  for the  Majority, suggested  rephrasing                                                              
the first resolve  clause on page 2, line 30,  [Mr. Regelin's item                                                              
4] to say:                                                                                                                      
                                                                                                                                
     Be  it  resolved  that  the   Alaska  State  Legislature                                                                   
     respectfully  requests   that  the  Department   of  the                                                                   
     Interior  and the  United States  Department of  Justice                                                                   
     appeal  the  decision  of the  U.S.  Court  of  Appeals,                                                                   
     Ninth  Circuit  in The  Wilderness  Society case  to  an                                                                   
     appropriate judicial body.                                                                                                 
                                                                                                                                
SENATOR SEEKINS asked  if copies of the resolution  should also be                                                              
sent to members of the Ninth Circuit (page 3).                                                                                  
                                                                                                                                
MR. POPELY  opined that  he didn't  know if  they would  accept it                                                              
and it  certainly  would not  become a  part of the  record  on an                                                              
appeal  and  he thought  it  would  probably  be returned  to  the                                                              
Legislature.                                                                                                                    
                                                                                                                                
SENATOR  SEEKINS  pointed out  that  the  opinion was  written  by                                                              
Ronald M.  Gould and wondered  if he was  related to  Rowan Gould,                                                              
Regional Director,  U.S. Fish and Wildlife Service  who received a                                                              
copy of The Wilderness Society's memorandum.                                                                                    
                                                                                                                                
SENATOR  ELTON  asked  if  the  6  million  salmon  fry  could  be                                                              
released in any other lake.                                                                                                     
                                                                                                                                
MR.  REGELIN replied  that  there  may be  other  places, but  the                                                              
analysis  hasn't  been  finished,  yet. Now  that  The  Wilderness                                                              
Society has backtracked, he didn't think it was a problem.                                                                      
                                                                                                                                
SENATOR BEN STEVENS  noted that a letter, dated  February 18, from                                                              
The Wilderness Society  said a meeting was scheduled  between Cook                                                              
Inlet  Aquaculture  Association and  the  U.S. Fish  and  Wildlife                                                              
Service and asked if it had taken place.                                                                                        
                                                                                                                                
MR. REGELIN said he didn't know.                                                                                                
                                                                                                                                
SENATOR   WAGONER  moved   to  adopt   Mr.  Regelin's   conceptual                                                              
amendments  as amended  by Mr.  Popely. There  were no  objections                                                              
and it was so ordered.                                                                                                          
                                                                                                                                
CHAIR OGAN  said he would make sure  the committee got  to look at                                                              
the draft before it moved out.                                                                                                  
                                                                                                                                
MR. JOHN  FRENCH, Seward resident,  said he is a  former professor                                                              
with the  University of Alaska, School  of Fisheries. He  is now a                                                              
self-employed toxicologist  and represents  the City of  Seward on                                                              
the CIAA Board. He supported SJR 26.                                                                                            
                                                                                                                                
     The  problem usually  has  not been  the  U.S. Fish  and                                                                   
     Wildlife  Service.   They  have  been   permitting  this                                                                   
     release  for  a  good  number of  years  when  they  had                                                                   
     jurisdiction.  I  think, from  our  point of  view,  and                                                                   
     perhaps from  the most onerous point of  view throughout                                                                   
     the  nation,  is the  fact  that  the Circuit  Court  is                                                                   
     defining  it  as  a  commercial  operation.  Cook  Inlet                                                                   
     Aquaculture  Association is  chartered  as a  non-profit                                                                   
     under state statute. I'm not a commercial fisherman.                                                                       
                                                                                                                                
     One of  the things I've  been very impressed  with since                                                                   
     being on the  board, which is since 1998,  is the number                                                                   
     of non-commercial  fisheries related projects  that Cook                                                                   
     Inlet  Aquaculture  Association does.  The  bulk of  the                                                                   
     Cook Inlet  Aquaculture Association money  does, indeed,                                                                   
     come  from the  Salmon Enhancement  Tax and,  therefore,                                                                   
     from   commercial  fishermen.   There  is  certainly   a                                                                   
     significant  portion  that  comes from  other  [indisc.]                                                                   
     such  as  the  contract  with   the  Seward  Chamber  of                                                                   
     Commerce and  the silvers that were put  in Resurrection                                                                   
     Bay and  the more  recent release  over in Kachemak  Bay                                                                   
     that  was  paid   for  by  the  City  of   Homer,  as  I                                                                   
     understand. It's  clear that all  the fish that  go back                                                                   
     into the  Tustumena system  - we  are very careful  with                                                                   
     the fish that  are released back into the  wild are done                                                                   
     in  a manner  that is  consistent  with good  ecological                                                                   
     risk management  principles and maintaining  the genetic                                                                   
     stock. Tustumena fish go back into Tustumena....                                                                           
                                                                                                                                
     It was mentioned  to put Tustumena stock  fish elsewhere                                                                   
     will  require  an  additional  permitting  process.  The                                                                   
     Department of  Fish and Game could probably  process it.                                                                   
     Whether  we  could handle  6  million fish  elsewhere  -                                                                   
     that's a different  question. But, the really  key issue                                                                   
     is that  the Tustumena  Lake system is  one of  the most                                                                   
     productive  systems  that  [is] being  enhanced  in  the                                                                   
     Cook Inlet area.  It's important not just  to commercial                                                                   
     fisheries,  but to  personal  use sports  fisheries  and                                                                   
     subsistence fisheries. Everybody uses these salmon....                                                                     
                                                                                                                                
     It's  very hard  for us  to understand  why the  Circuit                                                                   
     Court chose  to rule this as a commercial  operation. It                                                                   
     has  also  been  pointed  out  earlier  [that]  all  the                                                                   
     commercial  take of  these fish occurs  after they  have                                                                   
     not  only left  the wilderness  area,  but they've  gone                                                                   
     out to sea and come back again....                                                                                         
                                                                                                                                
MR.  DREW  SPARLIN,  CIAA,  said  the board  had  a  meeting  this                                                              
morning  and  Gary  Fandrei, Executive  Director,  CIAA,  wrote  a                                                              
letter  [in their  packets]. He  endorsed  the previous  speakers'                                                              
comments and added:                                                                                                             
                                                                                                                                
     The Tustumena  Lake Salmon Enhancement Project  has been                                                                   
     in  continuous operation  since 1974.  It was  developed                                                                   
     and managed  first by the Alaska Department  of Fish and                                                                   
     Game  and  is  now managed  by  Cook  Inlet  Aquaculture                                                                   
     Association.  For  over  29 years,  this  well  designed                                                                   
     project has  provided fish  for sport and personal  use,                                                                   
     subsistence  and commercial  fisheries in  the heart  of                                                                   
     Alaska's  Cook Inlet  fisheries. It  has evolved into  a                                                                   
     model   of  hatchery   supported  enhancement   projects                                                                   
     throughout Cook Inlet and the rest of the state.                                                                           
                                                                                                                                
     Cook  Inlet  Aquaculture  Association   is  not  just  a                                                                   
     commercial   operation.   We're  formed   under   Alaska                                                                   
     Statute  16.10.380 as  a qualified  non-profit  regional                                                                   
     association    that    includes    all    user    groups                                                                   
     representative  of  local  communities.  The  only  user                                                                   
     group  that  is being  restricted  from the  fish  being                                                                   
     produced  in the Cook  Inlet Aquaculture Association  is                                                                   
     the  commercial  fishery.  It's  open to  users  of  all                                                                   
     other uses.                                                                                                                
                                                                                                                                
     All  fish  that  are  released  in  Tustumena  Lake  are                                                                   
     screened  for disease  prior to  release. Another  point                                                                   
     is  that all  fish in  Tustumena Lake  are marked.  CIAA                                                                   
     annually monitors  Tustumena Lake tributaries  to assess                                                                   
     the impact  of the spawning  populations. All  fish that                                                                   
     are released  in Tustumena  Lake are incubated  at Trail                                                                   
     Lakes Hatchery and the hatchery rearing is minimal.                                                                        
                                                                                                                                
CHAIR OGAN  asked him  if he  knew who  the executive director  of                                                              
The Wilderness Society is.                                                                                                      
                                                                                                                                
MR. SPARLIN replied that he didn't.                                                                                             
                                                                                                                                
CHAIR OGAN  said he  thought it was  Nicole Whittington  Evans and                                                              
intimated that her husband is one of his most outspoken critics.                                                                
                                                                                                                                
MR.  PAUL   SHADURA,  Kenai   Peninsula  Fisherman's   Association                                                              
(KPFA),  noted   that  the  state  constitution   allows  for  the                                                              
promotion of  fish development and  aquaculture within  the state.                                                              
In 2002,  1.4 billion fry were  released and 26 million  fish were                                                              
harvested  in common  property fisheries.  CIAA provides  benefits                                                              
for commercial,  sports, personal  use and subsistence  fisheries.                                                              
In 2002, 22 percent  of the common property sockeye  salmon caught                                                              
in Cook Inlet  commercial salmon fisheries originated  in the Cook                                                              
Inlet  Hatchery  with an  estimated  value  of  $2 million  to  $3                                                              
million. KPFA is  predominately comprised of set  netters and many                                                              
of  their  fishing  families  would be  affected.  "A  22  percent                                                              
reduction  would  be  extremely  painful and  deleterious  to  the                                                              
economies and the local [indisc.] communities...."                                                                              
                                                                                                                                
He explained that  the Wilderness Act contains  special provisions                                                              
that  allow exemptions  for certain  activities  to be  conducted.                                                              
Congress  has allowed  cattle ranching,  mining, oil  exploration,                                                              
water  rights, corridors  for utilities,  towers,  etc. "So  there                                                              
are some  commercial activities,  but they  are let under  special                                                              
provisioning."                                                                                                                  
                                                                                                                                
MR. SHADURA  pointed  out that section  7 of  the Submerged  Water                                                              
Act says,  "Nothing in this act  shall constitute an  expressed or                                                              
implied claim or  denial on the part of the federal  government as                                                              
to its fish and except for state water laws."                                                                                   
                                                                                                                                
He  also pointed  out  that  the  Alaska National  Interest  Lands                                                              
Conservation  Act  (ANILCA),  Title  XIII  [Aquaculture  Section],                                                              
says:                                                                                                                           
                                                                                                                                
     In   accordance  with   the   goal  of   restoring   and                                                                   
     maintaining  fish production in  the State of  Alaska to                                                                   
     optimum  sustained yield  levels and  in a manner  which                                                                   
     adequately     assures     protection,     preservation,                                                                   
     enhancement   and  rehabilitation   of  the   wilderness                                                                   
     resource,  the Secretary of  the Agriculture may  permit                                                                   
     fishery   research,    management,   enhancement,    and                                                                   
     rehabilitation   activities   within   national   forest                                                                   
     wilderness  and national forest  wilderness study  areas                                                                   
     designated   by   this  Act.   Subject   to   reasonable                                                                   
     regulations,   permanent  improvements  and   facilities                                                                   
     such  as  fishways,  fish   weirs,  fish  ladders,  fish                                                                   
     hatcheries,  spawning  channels, stream  clearance,  egg                                                                   
     planting....'  etc.  As  long as  these  activities  are                                                                   
     reasonable....                                                                                                             
                                                                                                                                
He  said   the  National  Aquaculture   Act  of   1980  authorizes                                                              
development  of a national  plan for  aquaculture and  establishes                                                              
the  Department of  Agriculture  as the  lead  federal agency  for                                                              
coordination  and  dissemination  of national  aquaculture  permit                                                              
information. [END OF SIDE A]                                                                                                    
                                                                                                                                
TAPE 04-12, SIDE B                                                                                                            
                                                                                                                                
4:25                                                                                                                            
                                                                                                                                
MR. SHADURA  also quoted a 1956  act that predated  the Wilderness                                                              
Act, which said:                                                                                                                
                                                                                                                                
     Congress   declares  that   the   fish,  shellfish   and                                                                   
     wildlife  resource   of  the  nation  make   a  material                                                                   
     contribution  to our  national economy  and food  source                                                                   
     supply to  the health, recreation  and wellbeing  of our                                                                   
     citizens....                                                                                                               
                                                                                                                                
MR. ROLAND MAW,  United Cook Inlet Drift Association,  agreed with                                                              
previous testimony.  He said that the 6 million  fry produce about                                                              
100,000 fish  that return to  the Kasilof  River in early  May and                                                              
continue through  late August. During  that time,  the subsistence                                                              
fishery, the  dip net fishery  and the commercial  gillnet fishery                                                              
work on them.  However, his point  is that the period  of time the                                                              
commercial fishermen  are on the fish  is less than half  the time                                                              
they are available to all citizens of the state.                                                                                
                                                                                                                                
MR.  KEN  DUCKETT, Executive  Director,  United  Southeast  Alaska                                                              
Gillnetters Association  (USAG), supported SJR 26.  He pointed out                                                              
that  activities in  wilderness areas  are coming  under more  and                                                              
more  attack.  Fishing  rights  have  been  lost  in  Glacier  Bay                                                              
National Park and  now there's this situation with  enhancement. A                                                              
number of  fishing areas  are immediately  adjacent to  wilderness                                                              
areas and this is a trend that needs to be stopped.                                                                             
                                                                                                                                
SENATOR WAGONER moved  to pass CSSJR 26 (RES)  from committee with                                                              
attached fiscal  note and  individual recommendations.  There were                                                              
no objections and it was so ordered.                                                                                            
                                                                                                                                
4:30 p.m. - 4:32 p.m. - at ease                                                                                                 
             SB 303-BIG GAME GUIDE BOARD & SERVICES                                                                         
                                                                                                                                
CHAIR SCOTT OGAN announced SB 303 to be up for consideration.                                                                   
                                                                                                                                
REPRESENTATIVE  RALPH SAMUELS,  Chairman,  Legislative Budget  and                                                              
Audit Committee,  explained that  this bill is  in response  to an                                                              
audit  that came  out in  October  that listed  the problems  that                                                              
have resulted in  the absence of the Big Game  Commercial Services                                                              
Board.                                                                                                                          
                                                                                                                                
     Guides  have been  licensed since  before statehood  and                                                                   
     they  were regulated  by  a board  from  1973 until  the                                                                   
     board   sunsetted  in   1995.  The   audit,  which   was                                                                   
     requested  in the  previous  Legislature,  when it  came                                                                   
     out, it gave  a number of issues and concerns  that have                                                                   
     not  been  addressed. You  should  have  a copy  of  the                                                                   
     audit in your packet.                                                                                                      
                                                                                                                                
     The  first  one  was  a  lack  of  the  ability  of  the                                                                   
     Department  of Community &  Economic Development  (DCED)                                                                   
     to coordinate  with all the  state and federal  agencies                                                                   
     required in  an industry such as the  guide industry....                                                                   
     Some  of   the  agencies  that   are  involved   in  the                                                                   
     discussion  are the Alaska  Department of Fish  and Game                                                                   
     (ADF&G), Department  of Public Safety  (DPS), Department                                                                   
     of    Natural    Resources    (DNR),    Department    of                                                                   
     Environmental Conservation  (DEC) and the  Department of                                                                   
     Community  and Economic  Development  (DCED);  and on  a                                                                   
     federal  level, Bureau  of  Land Management  (BLM),  the                                                                   
     Forest  Service  (USFS),  U.S. Fish  and  Wildlife,  the                                                                   
     Park Service, the Coast Guard and the FAA.                                                                                 
                                                                                                                                
     The  second thing  the audit  noted was  a lessening  of                                                                   
     ethical standards  with the  disappearance of the  board                                                                   
     that  was not  adopted into  the  statute. A  lack of  a                                                                   
     detailed  operating  standards   for  guides,  a  weaker                                                                   
     focus on  hunter safety....  Another point in  the audit                                                                   
     was  a  diminished  disciplinary   climate  for  unsafe,                                                                   
     unethical or  even illegal conduct. There are  no ethics                                                                   
     standards  to steer how  guides or transporters  conduct                                                                   
     business.                                                                                                                  
                                                                                                                                
     It  needs a  little  direction  from the  department  to                                                                   
     address   consumer  complaints.   Usually,  their   only                                                                   
     recourse  for a dissatisfied  customer goes straight  to                                                                   
     litigation.  Under  the  current system,  there  are  no                                                                   
     sanctions  for  multiple  consumer  complaints  or  game                                                                   
     violations.  Fines  for infractions  have  been  greatly                                                                   
     reduced  and the qualification  exams  are only for  the                                                                   
     registered  guides, not for  the assistant guides.  It's                                                                   
     been suggested  that these issues could be  addressed by                                                                   
     the  department  and  without a  board.  However,  after                                                                   
     meeting  with a lot  of the  players that are  involved,                                                                   
     it  seems apparent  that  the  department would  have  a                                                                   
     hard  time solving  all these  problems  alone. If  they                                                                   
     could  have, they  probably would  have in  the past  10                                                                   
     years.                                                                                                                     
                                                                                                                                
     The reestablishment  of the  board would provide  a more                                                                   
     accessible  public forum  to address  the problems  that                                                                   
     face   the  hunting  industry,   its  interaction   with                                                                   
     hunters  and   the  various  private  and   public  land                                                                   
     managers.  We  are a  world-class  hunting  destination.                                                                   
     People spend  a lifetime of  savings to come up  here to                                                                   
     go hunting  and we  should protect  both our  reputation                                                                   
     and the resource.                                                                                                          
                                                                                                                                
     In  practical  terms, the  bill  does three  things.  It                                                                   
     moves  responsibilities  from   the  department  to  the                                                                   
     board;  it   changes  the  term  from  guide   to  guide                                                                   
     outfitter  - we  had a hearing  two hours  ago in  House                                                                   
     Resources  and that was  one of  the concerns that  came                                                                   
     up  that   we  should   identify....  Before  the   next                                                                   
     hearing,  we will come  up with a  way to better  define                                                                   
     the combining  of the guide  and the outfitter  term. It                                                                   
     also raised potential fines from $1,000 to $5,000....                                                                      
                                                                                                                                
CHAIR OGAN  said it  was late  in the  day and  he wanted  to give                                                              
priority to people  who had flown in to testify.  He didn't intend                                                              
to move the bill today.                                                                                                         
                                                                                                                                
MR. RON  SOMERVILLE, member, Board  of Game, noted the  March 2003                                                              
letter  from   the  board   asking  leadership   to  examine   the                                                              
possibility  of  reinstituting  a commercial  services  board.  In                                                              
some  areas of  Alaska, the  perception exists  that some  hunters                                                              
are being  dumped and not  picked up. The  Board of Game  does not                                                              
have  any authority  over transporter  activities  and supports  a                                                              
commercial  services  board that  would  exude some  control  over                                                              
them. Currently  if there  is a biological  problem, the  Board of                                                              
Game has  to either initiate some  sort of reduction  that applies                                                              
to  locals and  non-locals alike  or  initiate aircraft  closures,                                                              
which hurt  locals and the  legitimate guiding programs  that rely                                                              
heavily  on aircraft.  "It  creates all  sorts  of ripple  effects                                                              
when the  board takes  those sorts  of actions.  I want  to stress                                                              
that,  because  from  the  board's standpoint,  that  is  a  major                                                              
problem."                                                                                                                       
                                                                                                                                
He  said economic  opportunity exists  for residents  of the  Bush                                                              
and the  state in general  to derive some  benefit if  changes are                                                              
made.  The  proposed   board  would  provide   focus,  motivation,                                                              
expertise  and  development  of  a  performance  ethic,  which  is                                                              
drastically lacking  right now.  It would provide  enforcement and                                                              
a   forum  for   resolving   conflicts  and   maintain   reporting                                                              
requirements.                                                                                                                   
                                                                                                                                
Finally, a  new board would add  impetus for creation  of training                                                              
mechanisms for people  in rural Alaska, which was  being attempted                                                              
before it  was eliminated. Also,  it's critical to have  some sort                                                              
of reporting  requirement for  commercial transporters  taking big                                                              
game hunters to a remote area.                                                                                                  
                                                                                                                                
SENATOR  RALPH SEEKINS  asked if  someone has  hunted rabbits  for                                                              
the last  two years in  Alaska, could they  be an assistant  guide                                                              
to hunt  grizzly bears in  reference to  language on page  8, line                                                              
2, under requirements to have an assistant guide.                                                                               
                                                                                                                                
MR. SOMERVILLE  replied that would  be theoretically  possible. He                                                              
added that  a training  program could include  first aide,  how to                                                              
skin a  big game  animal, preservation  of trophies  and things  a                                                              
big game guide should know.                                                                                                     
                                                                                                                                
SENATOR  SEEKINS said  if  he was  spending  the big  bucks to  go                                                              
hunting and  had an assistant guide  who didn't know the  big game                                                              
animal he was hunting, he would feel a little bit gypped.                                                                       
                                                                                                                                
MR.  SOMERVILLE replied  that a  class  A assistant  guide has  to                                                              
book  through a  registered  guide who  would  be responsible  for                                                              
making  sure the assistant  guide  had the necessary  help  in the                                                              
field.                                                                                                                          
                                                                                                                                
SENATOR SEEKINS said  in reinstating the board, he  wanted to make                                                              
sure qualifications  were at  a reasonable  level or tighten  them                                                              
up before rather than later.                                                                                                    
                                                                                                                                
CHAIR OGAN  informed him that  he was on  the Big Game  Commercial                                                              
Services  Board  before  he  was in  the  Legislature  and  helped                                                              
Senator  Halford  rewrite  the  law. At  that  time,  taking  away                                                              
testing for  assistant guides was  favored because a lot  of rural                                                              
Alaskans couldn't take a test, but made really fine guides.                                                                     
                                                                                                                                
     A  registered  guide  is  legally  responsible  for  the                                                                   
     mistakes  that  the  assistant   under  his  supervision                                                                   
     makes in the  field. It's like he did it himself.  And I                                                                   
     don't  think  there's  any  other  profession  where  if                                                                   
     you're   a  doctor   and  your   nurse  does   something                                                                   
     criminal, you go to jail for what your nurse did....                                                                       
                                                                                                                                
The committee decided to let the guides make the judgment call.                                                                 
                                                                                                                                
SENATOR  SEEKINS asked  if  someone is  convicted  of a  violation                                                              
based on state  statutes and then transported  illegally, wouldn't                                                              
that be a  better to say that  than language on page  10, lines 23                                                              
-24,  which says,  "(1) is  convicted of  a violation  of a  state                                                              
statute or regulation  relating to hunting or to  provision of big                                                              
game hunting services or transportation services;".                                                                             
                                                                                                                                
MR.  SOMERVILLE replied  that  the board  hadn't  dealt with  that                                                              
particular question,  but he agreed  that some provision  could be                                                              
made  for the  board to  revoke  a license  if a  person had  been                                                              
convicted of any major federal law.                                                                                             
                                                                                                                                
CHAIR  OGAN  related  a  case  when  federal  agents  caught  some                                                              
hunters killing wolves  and the board took their  licenses for one                                                              
year.  "So, there  has been  some history  in the  past for  doing                                                              
that."                                                                                                                          
                                                                                                                                
SENATOR  SEEKINS had  a question  on page 16,  section (b),  about                                                              
whether another  guide area  could be added  to areas  that needed                                                              
more  intensive   management.  He  suggested   inserting,  "unless                                                              
otherwise provided by law" to facilitate that.                                                                                  
                                                                                                                                
CHAIR  OGAN   and  Mr.   Somerville  thought   that  was   a  good                                                              
suggestion.                                                                                                                     
                                                                                                                                
MR.  JOE KLUTSCH,  Alaska Professional  Hunters Association,  said                                                              
he  is a registered  master  guide and  has been  involved in  the                                                              
guiding  industry for  over 30  years.  When he  was an  assistant                                                              
guide in  the early '70s, he  attended the very first  guide board                                                              
meetings  and  attended  them  until  the  Owsichek  decision.  He                                                              
helped the  Legislature recreate  a commercial  service board.  In                                                              
other words, he has some historical knowledge of this process.                                                                  
                                                                                                                                
CHAIR OGAN stated  for the record that the Owsichek  decision took                                                              
away exclusive  guide  use areas.  The state  took away the  guide                                                              
board  and created  the Big  Game Commercial  Services Board  that                                                              
wrote regulations that redefined and redrew the guide use areas.                                                                
                                                                                                                                
MR. KLUTSCH  said the Association  represents the majority  of the                                                              
active  full-time contracting  guides in  the state  and the  vast                                                              
majority of  members support the  reestablishment of  a Commercial                                                              
Service Board.                                                                                                                  
                                                                                                                                
     We  see the  board  and the  board  process  as a  great                                                                   
     forum  for  interaction  between   the  members  of  the                                                                   
     industry,  both   guiding  and  transporting,   and  the                                                                   
     various  agencies,  state  and  federal.  It's  an  open                                                                   
     forum; it's a  public forum and it's really  the type of                                                                   
     situation where  you get an  active dialogue.  You can't                                                                   
     do these  kinds of things  in communications,  either e-                                                                   
     mails, conference  calls or a  few phone calls  from all                                                                   
     different  directions, and  count  on regulations  being                                                                   
     developed administratively.  It just doesn't  work; it's                                                                   
     too   sluggish.   All  the   respective   agencies,   in                                                                   
     particular   state  and   federal,   are  confused   and                                                                   
     disconnected about  what each other is doing  and that's                                                                   
     really caused us some problems in the last five years.                                                                     
                                                                                                                                
     In  absence   of  the  board,   we've  had  a   lack  of                                                                   
     responsiveness in  enforcement of existing  statutes and                                                                   
     regulations. We're  left over with some bits  and pieces                                                                   
     of  statutes   and  regs  that   were  there   prior  to                                                                   
     sunsetting.  Public safety  is at  a loss  to enforce  a                                                                   
     lot  of the  existing  statutes and  regulations.  There                                                                   
     have  been no  enforcement  actions to  my knowledge  in                                                                   
     the    last    five    years    related    to    ethics,                                                                   
     misrepresentation  of services,  reimbursement of  money                                                                   
     for services  not provided,  unethical conduct.  It just                                                                   
     hasn't  been there  and it's  been very  harmful to  the                                                                   
     reputation of this industry and the state....                                                                              
                                                                                                                                
MR.  KLUTSCH said  that Representative  Samuels  did an  excellent                                                              
job  of  outlining the  inter-relationships  between  the  various                                                              
agencies  and also the  justifications for  recreating the  board.                                                              
However, he underscored this message for the committee:                                                                         
                                                                                                                                
     The  guiding industry  in particular  does  not want  to                                                                   
     see  any regulatory  board  create more  regulations  or                                                                   
     unnecessary  regulations.... We  want clear and  concise                                                                   
     statutes and regulations that can be enforced....                                                                          
                                                                                                                                
He also agreed with  Senator Seekins' comments and  that this is a                                                              
critical juncture.                                                                                                              
                                                                                                                                
CHAIR OGAN took  a minute to clarify  that he wasn't a  big fan of                                                              
creating more  boards and, in fact,  wanted to get rid  of a whole                                                              
bunch of  them, but he felt  this board would  be self-supporting.                                                              
He asked Mr. Klutsch  what gave him comfort that  a new regulatory                                                              
board wouldn't write regulations.                                                                                               
                                                                                                                                
MR. KLUTSCH  conceded  the point  and said the  last thing  guides                                                              
want to see is additional unnecessary regulations.                                                                              
                                                                                                                                
     But,   as  circumstances  evolve,   land  use   patterns                                                                   
     change, management  objectives change, we need  a degree                                                                   
     of flexibility  and a board has that  flexibility. We'll                                                                   
     be  there  to  participate   in  the  process.  We  will                                                                   
     hopefully  have knowledgeable  members from all  sectors                                                                   
     of the  commercial service  industry represented  on the                                                                   
     board,  members of  the public  and lots  of input  from                                                                   
     the respective agencies, state and federal.                                                                                
                                                                                                                                
SENATOR  SEEKINS  asked  if  his experience  with  the  period  of                                                              
autonomy that has existed until now has been good or bad.                                                                       
                                                                                                                                
MR. KLUTSCH replied:                                                                                                            
                                                                                                                                
     It's had a  negative effect not having a  board there to                                                                   
     be able  to adjust  regulations where  they are  unclear                                                                   
     as it relates  to the driving statutes about  who can do                                                                   
     what, about  reporting requirements, about  disciplinary                                                                   
     actions, about  coordinating with the  federal agencies.                                                                   
     It's had a very negative effect.                                                                                           
                                                                                                                                
     The  quality   of  visitor   services  -  we're   a  key                                                                   
     component  of Alaska's  tourism  industry. And  Alaska's                                                                   
     reputation  for  having  quality  big  game  hunting  is                                                                   
     slipping  relative to Canada  and other destinations  in                                                                   
     the  world.  I  attribute  it  directly  to  proper  and                                                                   
     concise regulations.                                                                                                       
                                                                                                                                
SENATOR SEEKINS  asked if he  thought this  board would do  a good                                                              
job  for the  people of  Alaska  in general  and that  it's not  a                                                              
capitulation to big game guides and their out-of-state clients.                                                                 
                                                                                                                                
MR.  KLUTSCH observed  that as  another good  point and  reasoned,                                                              
"If we're  well regulated,  resident hunters benefit,  subsistence                                                              
hunters   benefit,  wildlife   viewers  benefit.   If  it's   done                                                              
properly, it benefits everyone."                                                                                                
                                                                                                                                
SENATOR  WAGONER said  a  prevalent problem  in  the last  several                                                              
years is that  transporters take people out, especially  in Prince                                                              
William Sound,  and drop them off  on an island or beach  and then                                                              
pick  them up  sometimes  many days  after  they  said they  would                                                              
return.  He hoped  this board  would  put some  controls on  that,                                                              
because one of these days lives would be lost.                                                                                  
                                                                                                                                
MR.  KLUTSCH  righteously  agreed.  He explained  that  a  serious                                                              
problem associated  with those transporting activities  is lack of                                                              
compliance  with   reporting  requirements.  The   intent  of  the                                                              
required form is  to provide accountability - that  everyone has a                                                              
license,  proper  tags and  when  they  are  picked up,  how  many                                                              
pounds of  meat they  brought out, its  condition, etc.  "They are                                                              
required,  if things  are  out  of order,  to  report  it to  [the                                                              
Department of] Public Safety."                                                                                                  
                                                                                                                                
He related  that a  transporter in the  King Salmon  area admitted                                                              
to turning  in at  least a half  dozen of  his moose clients.  "It                                                              
works. It takes enforcement."                                                                                                   
                                                                                                                                
CHAIR  OGAN commiserated  that wasting  meat in  the field  is the                                                              
number one  issue in rural Alaska.  He's heard of racks  coming in                                                              
with just the backstrap.                                                                                                        
                                                                                                                                
SENATOR  SEEKINS said  he didn't  live in rural  Alaska, but  felt                                                              
offended, as well.                                                                                                              
                                                                                                                                
MR. PAUL JOHNSON,  Alaska guide, said he had been  in the business                                                              
for over  30 years. He pointed  out that the guiding  industry had                                                              
never asked  the Legislature  for loans,  advertising or  disaster                                                              
relief.                                                                                                                         
                                                                                                                                
     What  we're asking  for here  is reasonable  regulations                                                                   
     and a board  back. We have an opportunity  in this state                                                                   
     to  save some  industry  here so  that  guiding will  be                                                                   
     here for a long time.                                                                                                      
                                                                                                                                
MR. JOHNSON  said that  Alaska guides  are competing  in a  global                                                              
market. People  who come to our  state have the opportunity  to go                                                              
to  a lot  of  other  places and  that  won't continue  to  happen                                                              
"unless we clean  it up." A lot of things have  fallen through the                                                              
cracks since a board  existed. There has been a  big changeover in                                                              
administrators and there is no collective history.                                                                              
                                                                                                                                
     There's  confusion  on  enforcement,  there's  confusion                                                                   
     within  the  Department  of  Fish and  Game  on  getting                                                                   
     information   -  they  can't   get,  can't  retrieve   -                                                                   
     complete  confusion  over  definitions  -  that  weren't                                                                   
     there before.                                                                                                              
                                                                                                                                
He  agreed  with  the  issues  that  Mr.  Somerville  and  Senator                                                              
Seekins  raised   and  emphasized   that  state  agencies   aren't                                                              
coordinated among  themselves or with the federal  agencies. A new                                                              
board could  solve those problems.  "So, it actually  saves money.                                                              
It can't be seen right on top."                                                                                                 
                                                                                                                                
MR. JOHNSON said  the original task force, led  by Henry Springer,                                                              
was  working  when   it  was  sunsetted;  then   the  whole  thing                                                              
collapsed.  He repeated,  "The whole  thing  has collapsed....  We                                                              
desperately  need this. I  think this  is a shot  in our  arm that                                                              
has to happen...."                                                                                                              
                                                                                                                                
MR.  MATT  ROBUS, Director,  Division  of  Wildlife  Conservation,                                                              
Alaska Department of  Fish and Game (ADF&G), said  he had met with                                                              
the  Department of  Community &  Economic  Development (DCED)  and                                                              
Department  of Public  Safety (DPS),  but  they hadn't  come to  a                                                              
consensus  position, yet.  He wanted to  emphasize the  importance                                                              
of this issue to be considered by the Legislature.                                                                              
                                                                                                                                
     It's  been  apparent  over  the years  since  the  guide                                                                   
     board has  gone away, in  working between my  department                                                                   
     and  the Board of  Game, how  much of  a struggle  it is                                                                   
     for that regulatory  entity to get any traction  on some                                                                   
     of these issues  that we're discussing here.  The powers                                                                   
     given  to   the  Board  of   Game  are  for   biological                                                                   
     management  and   while  the  board,   with  information                                                                   
     provided  by  the  department,  can  be  and  is  pretty                                                                   
     effective in  dealing with biological problems,  when it                                                                   
     comes to  allocation between user groups,  things become                                                                   
     very difficult,  because the tools in the  Board of Game                                                                   
     tool box really  aren't the right tools to  address that                                                                   
     problem.                                                                                                                   
                                                                                                                                
     Unless  there  is a  biological  problem to  be  solved,                                                                   
     it's  really not  possible  for the  department and  the                                                                   
     Board  of  Game  to  allocate   between  different  user                                                                   
     groups  that may be  having conflicts  because they  use                                                                   
     resources  in a  different  way and  they get  crosswise                                                                   
     with each  other. Largely we're talking  about conflicts                                                                   
     between  local rural  users  in the  Bush and  non-local                                                                   
     users,  both non-residents  and  non-local Alaskans  who                                                                   
     come  into  the  area  on   top  of  local  patterns  of                                                                   
     hunting.   Oftentimes   those   conflicts   are   really                                                                   
     conflicts,  but  they  don't  occur  at  a  level  where                                                                   
     there's a  biological problem  that needs to  be solved.                                                                   
     Therefore, the Board of Game really can't go there.                                                                        
                                                                                                                                
     If there  is a biological  problem, then the  tools that                                                                   
     the Board  of Game  has can  be effective in  conserving                                                                   
     the resource,  but they are  pretty draconian  if you're                                                                   
     one  of  the user  groups  that  get  taken out  of  the                                                                   
     picture....                                                                                                                
                                                                                                                                
TAPE 04-13, SIDE A                                                                                                            
                                                                                                                                
MR. ROBUS said the Board of Game has attempted to deal with some                                                                
of the conflicts and in most cases has backed away from any                                                                     
final action:                                                                                                                   
                                                                                                                                
     It gets  so convoluted  and so  draconian that the  cure                                                                   
     is almost  worse than the  problem that we're  trying to                                                                   
     address. As  I said, it  would be a complimentary  power                                                                   
     to improve  the regulation  of the guiding industry  and                                                                   
     the  transporting industry.  I'll  also  make the  point                                                                   
     that   the  transporting   industry   is  an   extremely                                                                   
     important part  of the problem  and so far has  not been                                                                   
     very much in the regulatory picture.                                                                                       
                                                                                                                                
     The  final thing  I'll say  is  just to  point out  that                                                                   
     over recent  years, because of the state's  inability to                                                                   
     allocate  between different  user groups,  we have  lost                                                                   
     more and  more of the  wildlife management authority  to                                                                   
     federal  agencies   on  federal  lands,   because  those                                                                   
     agencies  do  allocate  between   guides,  transporters,                                                                   
     private hunters,  federally qualified subsistence  users                                                                   
     -  and, in some  cases that  I could  name in  Southeast                                                                   
     Alaska, for  instance, when it  came time for  the state                                                                   
     to  try to  sort out  some  of those  problems, we  were                                                                   
     unable  to do  it.  Federal agencies  were  able to  and                                                                   
     willing  to  do it.  Therefore,  federal  management  is                                                                   
     really, in effect,  where state management has  not been                                                                   
     able   to  cope.  So,   for  all   those  reasons,   the                                                                   
     Department  of  Fish  and  Game feels  that  this  is  a                                                                   
     subject  that really  does require  some attention  from                                                                   
     you  and  we  will  continue   working  with  the  other                                                                   
     departments to  try to come  to a consensus  position as                                                                   
     soon as we can.                                                                                                            
                                                                                                                                
SENATOR SEEKINS asked,  "In other words then, the  department says                                                              
something along this  line would be beneficial to  your ability to                                                              
manage the fish and game resources of the State of Alaska."                                                                     
                                                                                                                                
MR.  ROBUS replied  that  was  a good  way  to put  it.  "Wildlife                                                              
management  in  the  big  sense  is more  than  just  solving  the                                                              
biological problems; it's also people management."                                                                              
                                                                                                                                
CHAIR OGAN  asked him to  talk a little  bit about  the difference                                                              
between state  and federal management  and why federal  management                                                              
was  able to  differentiate  between  users  more than  the  state                                                              
could.                                                                                                                          
                                                                                                                                
MR. ROBUS replied:                                                                                                              
                                                                                                                                
     In  Southeast  Alaska,  with the  proliferation  of  big                                                                   
     game guides,  mostly for the  purposes of hunting  brown                                                                   
     bear  on the  ABC Islands  and  now on  the mainland  in                                                                   
     Southeast,  the  Forest  Service  put  a  moratorium  on                                                                   
     additional  guides  joining  in  just  because  agencies                                                                   
     were trying  to solve how the existing number  of guides                                                                   
     was  going  to  be  allowed  to  operate.  On  tidelands                                                                   
     around  the  fringe  of those  federal  areas  there  is                                                                   
     still the  ability to go in  and participate as  a guide                                                                   
     or transporter  under state  law. So, the  proliferation                                                                   
     can  continue and  the state,  basically,  is unable  to                                                                   
     regulate  that.  I'm not  saying  the  use needs  to  be                                                                   
     prevented,  but there  does need to  be some  reasonable                                                                   
     regulation and control.                                                                                                    
                                                                                                                                
     The federal  agencies have the power to  distinguish and                                                                   
     decide  of all  the people  who want  to be  a guide  on                                                                   
     federal  land, they  can choose a  subset and  authorize                                                                   
     them to  hunt and keep the  numbers of guides down  to a                                                                   
     level  that the  resource  and people  interactions  can                                                                   
     reasonably support.                                                                                                        
                                                                                                                                
     The  only  way  the state  could  do  something  similar                                                                   
     would  be to  go to  a drawing  permit  for those  brown                                                                   
     bears  and devastate  the guide  industry. Because  now,                                                                   
     instead  of  being able  to  agree  with a  client  that                                                                   
     you're  going  to  go  hunting  together  and  get  that                                                                   
     person  a  permit,  you  would  have  to  go  through  a                                                                   
     drawing  process  with no  certainty  that any  of  your                                                                   
     clients would ever end up with a permit....                                                                                
                                                                                                                                
CHAIR  OGAN asked  if  that was  because the  feds  don't have  an                                                              
Owsichek-type decision.                                                                                                         
                                                                                                                                
MR. ROBUS  replied yes,  the feds don't  have anything  like that,                                                              
but  he  is not expert enough  in federal authorities  to know why                                                              
they can do what they do.                                                                                                       
                                                                                                                                
MR. ROB HARDY,  Wasilla registered guide, pointed  out paragraph 3                                                              
of the  sponsor statement that  says, "Wildlife populations  would                                                              
benefit from more coordinated enforcement of existing laws."                                                                    
                                                                                                                                
He    thought   that    idea    could   be    accommodated    more                                                              
interdepartmentally. He  said the key point is  when someone today                                                              
said "if done  properly," referring to reinstituting  the Big Game                                                              
Commercial Services  Board. He didn't think the  board alone would                                                              
be able to accomplish  what people thought it would.  He felt that                                                              
having a  20-day timeframe  for reporting  violations (in  HB 422)                                                              
is unacceptable.  If he  were to  witness a  violation in  his own                                                              
operation,  he would  report  it  immediately so  the  enforcement                                                              
could  happen efficiently.  He feared  that  recreating the  board                                                              
could   possibly,    if   not   probably,   result    in   further                                                              
liberalization of  industry regulation. "In closing,  I would like                                                              
to say that  this legislation as  written does not have  to happen                                                              
on this watch."                                                                                                                 
                                                                                                                                
MR. HENRY  WEBB, Staff  to Representative  Samuels, sponsor,  said                                                              
the representative  had to  catch a plane,  but would look  at the                                                              
transporter  and   guide  outfitter  language  and   consider  Mr.                                                              
Somerville's and Senator Seekins' concerns.                                                                                     
                                                                                                                                
CHAIR  OGAN called  it a  day and  adjourned the  meeting at  5:25                                                              
p.m.                                                                                                                            

Document Name Date/Time Subjects