Legislature(2001 - 2002)
05/03/2002 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES COMMITTEE
May 3, 2002
3:40 p.m.
MEMBERS PRESENT
Senator John Torgerson, Chair
Senator Gary Wilken, Vice Chair
Senator Robin Taylor
Senator Ben Stevens
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Rick Halford
COMMITTEE CALENDAR
Confirmation Hearings
Board of Fisheries
Art Nelson
Gerry Merrigan
Brett Huber
Commercial Fisheries Entry Commissioner
Mary McDowell
SENATE BILL NO. 371
"An Act exempting the use of munitions in certain areas from a
waste disposal permit requirement of the Department of
Environmental Conservation."
MOVED CSSB 371(RES) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
SB 371 - No previous action to consider.
WITNESS REGISTER
Mr. Joe Balash
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on SB 371 for the sponsor.
Ms. Pam Miller
ACAT
505 W. Northern Lights
Anchorage AK 99501
POSITION STATEMENT: Opposed SB 371.
Mr. Steve Cleary
Alaska Public Information Research Group
POB 101093
Anchorage AK 99501
POSITION STATEMENT: Opposed SB 371.
Ms. Nancy Hillstrand
POB 170
Homer AK 99603
POSITION STATEMENT: Opposed SB 371.
Mr. Tom Chapple, Director
Division of Air and Water Quality
Department of Environmental Conservation
555 Cordova St.
Anchorage AK 99501
POSITION STATEMENT: Commented on SB 371.
ACTION NARRATIVE
TAPE 02-25, SIDE A
Number 001
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:40 p.m. and announced the committee would
first take up Mary McDowell's reappointment to the Commercial
Fisheries Entry Commission (CFEC).
MS. MARY MCDOWELL told members she has been nominated for a
second term. She has experienced the fisheries from the
government side as a legislative staffer for 16 years and was a
fish buyer in a rural community for 18 years. She learned a lot
in her first term in office and hopes to have the opportunity to
use that experience during a second term.
SENATOR LINCOLN asked why she wanted to be reappointed.
MS. MCDOWELL replied that this is a career job, but she also
believes that she has something to contribute and she cares
deeply about the fishing industry in the state. She added, "I
think it's one of the most important things we have going as far
as a sustainable economy that creates a lot of jobs in this
state. It's at a transition point right now and I would really
like to be part of helping everyone work through these next
couple of years."
SENATOR ELTON said he hadn't heard any opposition to Mary
McDowell's reappointment. He thought Mary would be an asset in
getting through the challenges facing the fishing industry,
especially in the salmon fisheries.
CHAIRMAN TORGERSON said that Ms. McDowell has helped him over
some hurdles and has been a pleasure to work with.
SENATOR LINCOLN moved to forward the nomination of Mary McDowell
to the full Senate for consideration. There were no objections
and it was so ordered.
SB 371-WASTE PERMIT & COASTAL ZONE EXEMPTIONS
CHAIRMAN TORGERSON announced SB 371 to be up for consideration.
MR. JOE BALASH, staff to Senator Therriault, said SB 371 came
about after the U.S. Army contacted Senator Therriault in
relation to the passage of SB 356. On April 12, 2002, a group of
people sued the U.S. Army for allegedly operating an artillery
range without obtaining a waste disposal permit. In discussing
the matter with the Department of Environmental Conservation
(DEC), department staff said they never interpreted the statutes
to require a waste disposal permit for operating an artillery
range. Rather than chance having a federal judge interpret a
state law in a particular way, the Army requested that the
legislature make it clear in statute that a waste disposal permit
is not required on an active range. He said the House adopted a
committee substitute (CS) in a companion bill that clarifies that
this language would cover state and private ranges as well.
SENATOR LINCOLN said she has concerns because live ammunition
exists on some military ranges, therefore fires cannot be fought
on those ranges. She said she has heard repeated concerns in her
district that the military is not cleaning up its site. She
stated, "I am concerned that we are taking another check off of
having a waste disposal permit. I don't know what the problem is
with getting a permit for the military." She questioned whether
the process is time consuming and why this bill is before the
legislature.
MR. BALASH said that regarding the unexploded munitions
ordinance, DEC has testified that it fully intends to maintain
its ability to maintain oversight of it. In addition, this bill
will not restrict DEC's ability to continue to deal with
contaminated areas. He pointed out the lawsuit is asking the
judge to consider projectiles as waste. DEC's current definition
of solid waste doesn't apply to projectiles.
MS. PAM MILLER said she represented the plaintiffs. The major
points they are seeking in this litigation are to define what
portions of the Federal Clean Water Act and other federal laws
apply to this range and to cleanup the unexploded ordinance under
the Superfund law. Her group tried to settle this matter out of
court. They know the Army has more than 10,000 unexploded
munitions in and around the Eagle River flats and the toxicity of
those munitions poses a danger to wildlife and people in the
area. The exemption from existing state law is not necessary and
would undermine the state's authority to administer pollution
control laws and endanger state program certification. The
Department of Defense is also seeking exemptions under federal
law. She opposed passage of SB 371.
MR. STEVE CLEARY, Alaska Public Information Research Group
(AkPIRG), stated opposition to SB 371 and said:
No agency should be above the law, particularly one
responsible for six different [indisc.] sites in
Alaska, which the military is responsible for and
should be held accountable to. We hear our Governor
talk a lot about doing development right and I think we
need to apply that to the U.S. military as well,
particularly when they are creating public health and
safety hazards.
MR. CLEARY said he couldn't understand the purpose of this bill
other than to avoid responsibility for cleaning up Eagle River
flats and to avoid being held accountable in a court of law.
MS. NANCY HILLSTRAND opposed SB 371. She said it is a health and
safety issue and, as the other speakers have said, U.S. citizens
have the responsibility to keep everything clean and orderly and
the U.S. Government should be a shining example of how to do
business.
MR. TOM CHAPPLE, Director, Division of Air and Water Quality,
DEC, said the bill before them actually covers several functions
at DEC, both its Solid Waste Program, its Contaminated Sites
Program and wastewater permitting. He said he has three points to
make. First, the legislation makes changes to the permitting
authority for an activity that in their view does not need a
permit. DEC doesn't intend to require permits for the current
activities on an active military firing range or training range.
DEC's current reading of existing law is that current practices
do not constitute solid waste and do not require a permit.
However, once a site is closed, DEC may require a site closure
plan.
The second point is, that while no permit is required for this
activity, DEC has other responsibilities in primarily two areas.
First, if the range activity causes pollution, even if the site
is still active, DEC has an obligation to address that problem
with the Army. Furthermore, upon closure of the range, DEC will
ensure that the site poses no ongoing threat to the health or the
environment. It's clear that this legislation is not intended to
affect DEC's ability to deal with contamination at an active
firing range should contamination pose a risk. DEC has worked in
the past with the Army to determine that ingestion of white
phosphorus was killing waterfowl and as a result the Army has
quit using white phosphorous nationwide where it would impact
wetlands. In addition, on the Eagle River flats the problem
occurred only when the ground was frozen.
Due to historic hazardous substances releases, in 1994 Fort
Richardson was put on the Superfund list and the Army, the State,
and EPA eventually signed a three-way agreement that detailed how
the facility was going to be investigated and cleaned up.
His third point was that there is a significant national effort
under way right now by the Department of Defense to address what,
if any, changes to national and state environmental laws are
necessary for national security and combat readiness. The
Department of Defense addressed a meeting last week in Wisconsin
of all states' environmental staff. The Department of Defense
promised the states that the limitations it is seeking will be
surgical.
He added that SB 371 is not the result of any problem the Army
has had working with DEC. While he worked cooperatively with the
sponsor and the Army on this legislation to ensure that the
language does not jeopardize other important work that DEC is
doing, he is concerned that this change might lead to litigation.
He urged committee members to consider whether this would be more
appropriately done at a national level first.
CHAIRMAN TORGERSON announced an at-ease while teleconference
equipment was being fixed. He called the meeting back to order at
4:10 p.m.
MR. CHAPPLE asked the committee to consider that a significant
effort is underway at the national level to try to address what
exclusions to environmental laws are necessary for combat
readiness. He asked the committee to consider whether it is
appropriate to address this issue at the state level or to allow
the national level to take the lead.
CHAIRMAN TORGERSON asked if it is correct to say that Mr. Chapple
has no position on the bill because it doesn't really affect DEC
and that he does not intend to permit military ranges. If issues
with hazardous materials or air quality arise, he would respond
to that anyway.
MR. CHAPPLE said that is a very good summary of what he said.
SENATOR ELTON asked if DEC's definition of solid waste is in
statute or regulation.
MR. CHAPPLE replied that the definition is in AS 46.03.900 and is
definition 25.
SENATOR ELTON asked Mr. Chapple how DEC deals with the Department
of Transportation and Public Facilities (DOTPF) when it does
avalanche work.
MR. CHAPPLE said DEC does not require any permits for avalanche
control. He explained that the definition of solid waste hinges
upon whether the waste material is being disposed of or
abandoned. Until a military site is closed, the waste material is
not being disposed of or abandoned.
SENATOR ELTON clarified that his question surrounds the fact that
avalanche control work is accomplished by firing explosives into
cornices.
MR. CHAPPLE said DEC has never required a permit for a discharge
out of an artillery weapon.
SENATOR STEVENS proposed a conceptual amendment (number 1) to:
Insert "conventional military" on line 6, after "of" and to
delete "active" and insert "designated lived fire ranges". The
reworded sentence would read:
This section does not apply to discharges resulting
from the firing or other use of conventional military
munitions in training activities conducted on
designated live fire ranges operated by the United
States Department of Defense or a United States
military agency.
SENATOR LINCOLN asked how that would improve the bill.
SENATOR STEVENS responded that he talked to senior military
officials when they were here for the Joint Armed Services
Committee. In the Lauterbach legal opinion, there was some
concern about the definition of a live fire range and the
definitions of what munitions would be exempt under this proposed
legislation. He explained:
This essentially confines it to conventional military
munitions and leaves it at active designated live fire
ranges. Therefore, it doesn't bring up any indication
or allow anything to be considered in terms of remedial
of sites that have occurred in the past. It only occurs
to live sites and conventional military munitions.
SENATOR LINCOLN asked if the word "active" will be deleted.
SENATOR STEVENS said that is correct and that it will be changed
to designated.
SENATOR LINCOLN asked if that means that a designated live fire
range has to be an active designated live fire range.
SENATOR STEVENS replied that the explanation he heard is that a
range is either a designated range or it's not. If it's not
designated, it goes into a remedial work status.
SENATOR THERRIAULT said the bill is worded to also cover
municipal rifle ranges. His concern is if it's limited to apply
only to military ranges that, by omission, might mean that a
solid waste permit is now going to be required on municipal rifle
ranges or at areas where hunters traditionally site their rifles,
for example at abandoned DOTPF gravel pits. He said that might
create a problem for DEC at areas where it does not require solid
waste permits.
CHAIRMAN TORGERSON responded, "Didn't you have that problem
before?"
SENATOR THERRIAULT replied that he thought the wording was broad
enough.
CHAIRMAN TORGERSON noted the amendment says firing ranges
operated by the Department of Defense. He said the House
Resources Committee added the word "including" before "active" so
that it reads, "including active ranges operated by the United
States..."
MR. BALASH explained that the House Resources language states,
"This section does not apply to the firing or other use of
munitions in training activities conducted on active ranges,".
MR. BALASH said they could accommodate Senator Stevens' language
following the comma so that it is clear it applies to
conventional military ordinance being used on a designated range.
SENATOR ELTON said the problem seems to be the language on line
7, which limits activity.
CHAIRMAN TORGERSON asked Mr. Balash and Mr. Chapple to work on
that language while the committee took up the confirmation
hearings.
CONFIRMATION HEARINGS
CHAIRMAN TORGERSON said the committee would take up the
confirmation of Brett Huber to the Board of Fisheries. Mr.
Huber's seat will expire June 30, 2005.
MR. BRETT HUBER said he lives in Soldotna with his wife and
children and is an 18-year Alaska resident. He noted, "A big
reason, a big part of what moved me to Alaska is the opportunity
to participate in hunting and fishing." He said regarding why he
wants to serve on the Board of Fish, he sees it as an extremely
important function as Alaska's fisheries are an integral part of
the cultural, social economic fabric of Alaska. He hopes to
return something in the form of public service to the fisheries
that have been good to him. He brings some skills to the
position. He believes he has a good understanding of the
constitutional, statutory and regulatory framework for fisheries
in Alaska and he understands and has participated in the board
process. He said that board members should be able to facilitate
discussion. He said he is also familiar with the management
agencies. He reviewed his professional qualifications and
provided the committee with a copy of his resume. He noted he
omitted one affiliation that being that he is an ex-officio
director of the Alaska Fisheries Development Foundation.
MR. HUBER said he is currently the executive director of the
Kenai Sport Fishing Association (KSFA) whose mission is to
preserve the Kenai River through protecting fish habitat,
providing education and promoting responsible sport fishing. KSFA
deals with angler access, conservation and public education
issues. He is an annual salaried employee. He said his position
is not dependent upon Board decisions. There are potential
conflicts, however, as anyone would have with public service and
those must be disclosed and ruled on by the Chair.
He has been accused of being against consumptive use, but that
would come as a surprise to his family and people who know him,
who have participated in fisheries with him in various areas of
the state, who harvest, prepare and eat fish with him. When he
has all he can eat, he participates in the sport and lets the
fish go. He has also been accused of ignoring science or
advocating for positions in conflict with sound biology. He
stated, "I in no way believe that public opinion ought to sway
sound science…"
He said he has also been accused of advocating for the demise of
the commercial fisheries and that can't be further from the
truth:
Commercial fisheries are extremely important to
Alaska…I think there are some substantial hurdles and
challenges ahead for the Alaska salmon industry and
think having someone that brings a sport fish
perspective is willing to work in that process can be
beneficial as we work to address those issues. I don't
think it's the Board's job to come up with the
solutions. I don't think the Board probably can; I
think it's going to take a lot of folks working
together and the industry is going to have to bring
some ideas forward and it's the Board's responsibility
to work through those ideas with them.
TAPE 02-25, SIDE B
MR. HUBER said a Board of Fish member should listen to all user
and gear groups, rely on sound science, manage conservatively if
information is lacking, seek advice from the managers on what is
considered sustainable, etc. and fully consider the implications
of the board's decisions. The process should be transparent and
understandable, fair and consistent. He remarked:
Mr. Chairman and members of the committee, should I be
confirmed to this important position, I look forward to
doing my level best to meet those expectations for
others. I look forward to working, if I have the
chance, with my other appointees and the four dedicated
folks that are continuing their service and I'd be
happy to try to answer any questions for you.
CHAIRMAN TORGERSON said he would have Mr. Huber wait for the
committee to deal with SB 371 and then come right back to him.
SB 371-WASTE PERMIT & COASTAL ZONE EXEMPTIONS
CHAIRMAN TORGERSON announced SB 371 to be up again for
consideration.
SENATOR STEVENS moved to withdraw Amendment 1. There were no
objections and it was so ordered.
CHAIRMAN TORGERSON noted that the language they were considering
was House language that was adopted earlier in the meeting.
SENATOR TAYLOR moved to adopt Amendment 2.
SENATOR LINCOLN objected and explained that Amendment 2 is so
broad that it doesn't apply to firing or other use of munitions
in training activities conducted on active ranges including those
by the military. The sponsor stated it wasn't the intent to have
municipalities involved in the exemption for firing ranges.
The motion to adopt Amendment 2 carried with SENATORS WILKEN,
TAYLOR, STEVENS and CHAIRMAN TORGERSON voting in favor, and
SENATORS ELTON and LINCOLN opposed.
SENATOR TAYLOR moved to pass CSSB 371(RES) from committee with
individual recommendations.
SENATOR ELTON objected, saying that the committee had taken a
bill that addressed a very discrete problem and dramatically
increased its scope without taking any testimony at all on the
impacts. He said that he couldn't recall any problems Juneau had
in establishing a safe and active firing rang. He added:
The most compelling testimony was that we may be in a
position of making a change to state law, but will
maybe need to return following the national initiative
that is going to try to standardize the rules under
which the military operates. I think we've broadened it
to a great extent and we may be getting ahead of a
process that will hopefully provide a standardized
method for the military to operate when dealing with
these issues.
SENATOR TAYLOR said he made the motion to move the bill for a
specific purpose:
My son-in-law serves today as a captain in Special
Forces in the United States Army. He's based at Fort
Cole where he's doing reviews of special forces unit
teams that come through and go through various
difficult training exercises and he must review them.
Those same young men end up in places like Afghanistan
and other places in the world today. Before shipping
them into harms way, I want them to have every single
opportunity available, the finest training we can
provide. Alaska retains its military bases in light of
the [indisc.] base closures primarily because we do
have the free fire training ranges that we have
available for that personnel in this state. If
political correctness is going to get in the way of
defending this nation, then I want to be standing right
out in front and say I'm not going to be politically
correct on this one and I'm very proud of it…
SENATOR WILKEN said he wanted to associate himself with those
remarks. His son-in-law is Major Cameron Curry, an A-10 pilot
stationed at Eielson Air Force Base. He stated, "In no way, shape
or form would I sit at this table while I do anything to diminish
his training capabilities unless there is a clear and present
danger to the people of Alaska…"
SENATOR ELTON said he didn't know how to begin to respond. He
agreed with the comments from the previous speakers. He
personally trained on live fire ranges and that training was very
beneficial to him when he was in a live fire zone in Vietnam. He
would hate to leave the impression that his vote on this bill has
anything to do with political correctness or with wanting to
interfere with the training mission of the U.S. military. He
said:
We have not heard testimony that would even suggest
that. So I want to make it very clear to the members of
this committee that my negative vote has absolutely
nothing to do with the comments that were made
previously…We have not heard testimony that that would
happen. I, too, believe as they do that we ought to do
nothing that would minimize the kind of training our
men in uniform have.
SENATOR LINCOLN said she was offended that members suggested that
voting against moving this bill from committee means that she's
not patriotic or supportive of the military. She added:
To the contrary, I support the military 100% and have
done so my 12 years here. My problem with this is that
we're exempting a permit requirement and I didn't hear
from Tom that that stopped in any way the process from
going on, in that if we need to expedite a permit,
that's one thing, but just to eliminate a permit
requirement is of concern to me, regardless who it is.
SENATOR THERRIAULT responded that he wanted to make it clear to
the committee that passage of the CS does nothing more than
enshrine a current administrative interpretation of the statutes.
It doesn't remove a current permit regulation. It does mean that
a federal court is not going to broaden or change our
administrative interpretation of our own statutes against our
will.
CHAIRMAN TORGERSON asked for a roll call vote on the motion to
move the bill out of committee.
The motion carried with SENATORS LINCOLN and ELTON opposed and
SENATORS TAYLOR, WILKEN, STEVENS and TORGERSON in favor.
CONFIRMATION HEARINGS
CHAIRMAN TORGERSON noted that the committee was ready to ask
questions of Mr. Brett Huber, nominee to the Board of Fish.
SENATOR LINCOLN said she had a number of questions, but wanted to
note that she also had a number of communications from out-of-
state.
SENATOR LINCOLN said she gave great kudos to Mr. Huber for his
work as an aide to the Senate Resources Committee, but she has a
number of questions for him about his new role. First and
foremost is his involvement with the Alaska Outdoor Council
(AOC), which has clashed with them in the past over management of
fish and game. She was surprised to see that he is vice president
of AOC's political action committee. Since she had never received
a check from the AOC, she assumed that position was very
political and party oriented. She remarked:
That's very, very political when you are contributing
to candidates that are in the legislature and how would
that affect you then sitting on the Board of Fish and
the other party makes proposals to you? What affect
would that have?
MR. HUBER said the AOC is a political action committee, but it is
not single party oriented:
There have been endorsements and contributions made by
the PAC to multiple parties over time. Do I sign the
checks for the PAC? No I don't. And I have no problem
resigning that position and intend to do that and have
notified them as such. How that would affect my
decisions should I be confirmed as fit as a Board of
Fish member? It won't affect those decisions. As I said
in my opening statement, anybody that takes that
important position needs to be able to listen to all
positions, all user groups, all points of view.
Certainly we bring some personal experiences or life
experiences or perspectives to anything we do, but
public service is public service and it shouldn't come
in with an agenda or a specific attitude. I would do my
best to listen to all points of view, to consult with
the managers to make fair, conscientious decisions.
SENATOR LINCOLN asked if he was part of the PAC group that
decides who gets the checks.
MR. HUBER replied yes and that it's a seven-member board.
Questionnaires are sent out to members. He participated in
discussions over candidates.
SENATOR LINCOLN said she read every single letter about him, both
pro and con and that those opposed greatly outweigh those in
favor. She said two letters stand out. One was from someone who
has known him for a number of years, both socially and in
business, and thought Mr. Huber's opinions were very closed and
he would not change his mind. He felt that he had made up his
mind ahead of time and the doors are shut. She stated, "A number
of letters go in that direction - that you're already predisposed
to your opinion on fisheries and will not listen."
MR. HUBER responded that he disagrees with that point of view and
that other people say differently. He said, "I can certainly tell
you that the Board of Fish process doesn't work if you don't
listen."
SENATOR LINCOLN said some letters in the "do not confirm" stack
said that as the executive director of the KRSA, Mr. Huber found
fault with ADF&G scientific findings and hired outside
consultants for the express purpose of finding fault more than
once.
MR. HUBER said that science is not always absolutely crystal
clear. When it's clear the decisions are easy for the Board to
make, but there are things that we don't know about our fisheries
because information is scant, new or non-existent. Those are the
more difficult decisions and, when in doubt, you have to be more
conservative, "because sustainability has to be the ultimate goal
to take care of any users regardless of their perspective."
Regarding her question about the KSFA hiring outside consultants
and biologists to review fisheries data, MR. HUBER said it has
and note that is not uncommon, even for ADF&G, itself. When a
scientific article is going to be published, it goes through a
peer review process. Scientists welcome review by other
individuals.
SENATOR LINCOLN said she thought that most of the concerns in the
letters are about Mr. Huber's lack of communication skills. She
asked how he planned to build communication support among other
user groups that are his detractors.
MR. HUBER replied:
I think the only way you convince your detractors that
you are somebody that they can work with and that you
are not deserving of as much angst as you're receiving
is to do your job well. I think the Board process
should be as open as possible; it should be as inviting
to the public as possible. It is best to meet in the
communities that are affected. I think the Board ought
to do as good a job as it can of noticing the issues
it's going to be dealing with so people are prepared.
They know what's on the table….
4:55 p.m.
CHAIRMAN TORGERSON said he had a letter from the Central
Peninsula Fish and Game Advisory Board who opposes his nomination
for nine reasons. Four of them are very important. He noted:
All of these start out with a sentence before that you
have drafted and supported proposals to the Board of
Fish that takes biological management away from the
fisheries and management biologists.
He asked Mr. Huber to respond.
MR. HUBER responded that is a generalized statement. He believes
that fisheries management is not a perfect science. Fisheries
change, run predictions are often wrong and the ability for
fishery managers to apply adaptive management is important. Also,
he thought part of the Board's prerogative is to put plans
together that take care of the fish and are responsible to the
numerous user groups that participate in the fishery. He stated,
"The Board has to work very much hand in glove with [the
management biologists]."
CHAIRMAN TORGERSON said the second one takes the emergency order
authority away from the management biologists.
MR. HUBER replied the only proposal he helped draft was at the
last Cook Inlet meeting. He said he has attended many meetings
and commented on board proposals. In the previous cycle, the
Board adopted an abundance-based management policy for Cook
Inlet. He helped draft a proposal that lengthened the amount of
time they could fish to abundance, which is what the managers
said, yet provided for some passage of fish, because escapement
involves more than numbers; run cycles have to be considered.
Components of each run need to escape. The proposal linked it to
time, but didn't specify when the closures would be and left that
up to the managers. The KSFA supported proposals that removed
mandatory closures and left that to the discretion of ADF&G.
CHAIRMAN TORGERSON said the committee received a lot of letters
in opposition to his appointment from folks who are upset because
of the Board's decision to go to the trophy fishery, catch and
release keeping the larger ones for trophies. This prevents the
local angler from harvesting salmon, but allows non-resident hook
and release. He asked him to comment on that policy, which
everyone has credited to him.
MR. HUBER replied that created a lot of press, but there hadn't
been much give and take. The ADF&G had a growing concern for the
loss of the size component of the run of the 5 to 7 year old
fish. The department decided not to bring a proposal forward, but
took these concerns to the Kenai Soldotna Advisory Committee, who
drafted a proposal, No. 297, that asked for some protections for
those first fish in the first run. Its recommendation was
established in a non-retention slot. They wanted to try and
reestablish the age component in that run. That proposal came
before the Board and they discussed options. A lot of the Board
members felt they should try catch and release management on the
first run for the life cycle of the fish and see what that does
for both numbers. He added:
It's not just big fish; that run is also a fairly small
run that has a lot of participation. It's had in-season
restrictions for six of the last 12 years and in-season
regulatory changes for nine of the last 12 years. So do
you try to reduce participation and how would you go
about that or do you try to reduce harvest? Because the
biologists that I've talked to all say, if you want to
get more big fish in a salmon run, the first thing you
need is more fish, because big fish are a component of
the total run. The Board did take that position and
ended up adopting a policy that said a non-retention
slot for the beginning of the run through June 10, the
last 20 days in June, catch and release. As far as
taking away harvest opportunity from the local anglers,
harvest opportunity on the Kenai River before that
regulation is two fish per year; after that regulatory
change, it's two fish per year. Certainly, local
anglers probably have a greater opportunity to
participate when it's not a catch and release fishery
than people that choose to visit during that time
period.
CHAIRMAN TORGERSON asked, "What happens if you get a real strong
run and you have this policy there?"
MR. HUBER replied that he asked the managers that question and
they do not view this as a rigid rule. They believe their
emergency order authority would allow them, if there are just
loads of fish coming back in the first run and a big harvestable
surplus that would go unutilized, to open the fishery. The
Division of Commercial Fisheries Chief Scientist, Doug Eggers,
said that "over-escapement" is probably a bad word: "It's really
a question of economics and yield."
SENATOR ELTON said that no one comes to the Board with a clean
slate and he agrees with many of the things Mr. Huber said. He
asked how he plans to break through communication barriers as a
board member.
MR. HUBER replied that he served on the Halibut Subsistence Proxy
Committee for the North Pacific Fisheries Council as the sport
fish representative. He had a great opportunity to discuss issues
with 25 other people and it didn't seem to be a great hindrance
to explain himself or to understand what others were saying. He
said, "You just have to work through it and do the best job that
you can."
SENATOR ELTON said his concern is that they are asking the Board
of Fish to do near the impossible with allocation decisions
without the science that we should have available to the Board.
MR. HUBER responded that the first folks who approached him about
serving on the Board are current Board members, Chairman Gersham,
Larry Engle, Dan Coffee, John White, Russell Nelson, and Grant
Miller. They assumed those filters would not make his service
impossible or they would not have urged him to apply.
SENATOR STEVENS asked how many times he had been involved in an
agenda change request.
MR. HUBER replied that he has not filed an agenda change request.
That process is limited in scope to adopting an agenda change
request to correct an error in regulation or for a conservation
reason.
SENATOR STEVENS asked if he was saying that an agenda change had
never been requested for the Kenai Peninsula region.
MR. HUBER replied that neither he nor the Kenai River Sport
Fishing Association had requested one. He added that the agenda
change requests are reviewed at the fall work session and, in
general, no public testimony is taken. The Board works with ADF&G
to determine whether they think there's an issue that warrants a
change.
SENATOR STEVENS asked if the agenda change is on a three-year
cycle.
MR. HUBER replied it is.
SENATOR STEVENS said that the majority of Mr. Huber's involvement
with the Board of Fish is in one region of the state where the
Board faces the most divisive allocation issues.
MR. HUBER replied that he also participated in Board of Fish
meetings that dealt with Western Alaska and Area M.
SENATOR STEVENS said there is a difference in divisiveness
between commercial user groups and multiple user groups. He asked
Mr. Huber how, as a Board member, he would view a request for an
agenda change that had happened in the past and he couldn't
address critical issues to certain regions of the state that have
small populations but where the commercial fishery is important.
MR. HUBER said he didn't understand the question.
SENATOR STEVENS said legislation has been initiated to change the
agenda change request mechanism. He explained:
If you had a certain area of the state that continually
wants their issues solved in front of the Board at the
expense of solving issues in other areas of the state,
how would you respond to that?
MR. HUBER replied that the regulatory process of the Board that
is supposed to be taken up in order should never suffer because
of an agenda change request. The request ought to be considered
on its biological merits or as an unexpected happening because of
a change in regulation. He added:
The more the Board can keep to the set schedule and to
provide that notice and that surety to the public, the
better. However, I would never suggest that the Board
should not be able to take something up out of cycle if
there is truly a pressing conservation issue that needs
to be taken care of.
SENATOR STEVENS said there is a piece of legislation that changes
the procedures under which an emergency order can be ordered
under conservation. He asked Mr. Huber's opinion on that.
MR. HUBER replied that both the sponsor and ADF&G have told him
that they believe the same authority in the bill is available
now, but the bill better delineates how to exercise it in certain
circumstances.
SENATOR STEVENS said the majority of Mr. Huber's involvement has
been from a sport fish perspective in regions mainly where
there's an allocation issue with commercial fishermen. But, the
Board manages commercial fishing in areas where there is a non-
existent multiple user group issue. The issues that face those
regions are based on sound management and the ability to open and
close fisheries and to set commercial harvests. He asked how Mr.
Huber would rate his capacity to make decisions like that.
MR. HUBER disagreed that he has only been involved in a single
region and from a certain perspective. He said he also worked
with the Board and ADF&G to put a framework and implementation
plans together that affect all fisheries regardless of the user
group through the statewide escapement policy and through
meetings in Western Alaska. He stated:
There is a learning curve for any new Board member.
Commercial fisheries in areas where there is no sport
fishery tend to have gear groups within the commercial
fisheries that have differences of opinion. All of
those things are relying on the managers to give you
their advice, relying on the stakeholders, doing your
homework, listening to your fellow board members that
perhaps have more expertise in an individual area and
doing the best job you can and I believe I have the
capacity to do that. If I did not believe that, sir, I
would not have applied for the appointment.
CHAIRMAN TORGERSON read from a letter:
Mr. Huber states that he feels commercial fishing is
important to the state, but he has neglected to state
that by his direction the philosophy that he's
incorporated with the help of a paid fishery biologist
from Oregon was to sacrifice yield in the Cook Inlet
sockeye fishery. Since a sustained high yield of red
salmon is the engine for the commercial fishing in many
areas of the state, how can this mean Mr. Huber is
supportive of commercial fishing communities?
CHAIRMAN TORGERSON asked him how he was going to bring commercial
fisheries and allocation issues to some sort of resolution.
MR. HUBER disagreed with the contention that he advocated to
forego harvest of sockeye salmon. He explained:
The escapement goal for the Kenai River system is set
for 500,000 to 800,000 fish. That's a biological
escapement goal that's arrived at by the managers. The
escapement goal that came before and after this last
meeting was the same BEG [biological escapement goal].
We didn't propose a change to the BEG. As a matter of
fact, a number of my detractors that are involved in
some of the questions you're asking today had numerous
proposals before the Board to lower the BEG regardless
of whether that was based on the best biological
information from the managers or not. I certainly
didn't take that position.
He noted it's not uncommon for a Cook Inlet sport fish
appointment to have the commercial fishing industry from all over
the state oppose their nomination. This has not been the case
with him. The Bristol Bay fishermen passed a resolution in
support of him and other commercial fishermen support him, but
they can't come out in support of a sport-fishing candidate. He
noted:
But certainly, there is a mix. If we manage our
fisheries properly on a sustained yield basis and do
the best job that we can, there's not enough fish to
satisfy multiple users in Alaska. I can't imagine where
there would be, sir.
TAPE 02-26, SIDE A
SENATOR TAYLOR said he is amazed that the Board currently has a
policy on the Kenai that says you can catch and eat a king salmon
if it's over 55 inches long. He stated:
It would seem to me that if we catch and eat all the
kind [of] salmon that are longer than 55 inches long,
within a very short period of time, we will have
destroyed a genetic strain for which the Kenai is world
famous, because we're only turning loose the little
fish and we're eating the big fish. I have asked
biologists to explain that to me…
MR. HUBER responded that a few years ago there was a discussion
about using a catch and release fishery to slow it down in years
that they believe escapement goals will be met, but there's not a
harvestable surplus. They had a policy of catch and release and
retention of fish over 52 inches. In the preceding six years,
ADF&G's information was that 60 or 66 fish were harvested in that
size category. The new size limit is 55 inches. ADF&G's testimony
to the Board indicated there might be one a year or every two
years that would be harvested. The predominant 5 to 7 year old
fish fall under the 55-inch category. He added:
I thought about it, Senator, and I said the same thing
in the House committee the other day. I started
thinking about, oh yeah, but if there's only two of
them, do you want to kill those two? I would have to
agree and concur that it makes more sense if you're
protecting that big strain of fish that the Kenai is
unique because of that all of them are released for a
life-cycle of fish to see what kind of rebound in that
age class we see.
SENATOR TAYLOR wished him good luck and said, "And as long as no
one comes after my commercial fishermen, I'm not coming after
you. I hope people understand that."
SENATOR LINCOLN commented on four more letters from people who
live out-of-state but said the committee indicated it isn't
concerned with opinions from people who live out of state. She
then asked if he supports the current efforts for long-term
planning and the salmon task force for the revitalization of the
Alaska Salmon Industry.
MR. HUBER replied:
I think it is absolutely necessary for Alaskans to come
together and look for ways to shore up and create a
salmon industry that is economically sustainable.
Certainly I support those efforts.
SENATOR LINCOLN said a question was asked in the House Resources
Committee about whether ADF&G is best suited to make biological
decisions, especially when it comes to agenda change requests for
the Board of Fish and Mr. Huber had answered yes, they would
provide the best biological advice. She noted that is contrary to
what he said earlier about seeking outside expertise when it
wasn't provided by ADF&G.
MR. HUBER replied that he doesn't think those two statements
conflict because ADF&G itself seeks advice from peers outside the
state as it looks at setting escapement goals. In Western Alaska,
for instance, a peer review team was put together that consisted
of renowned salmon biologists from across the states and ADF&G
looked at their work. Contracting with biologists outside of
Alaska is normally done by a number of advocacy groups in all
areas. He maintained:
That's not what the Board of Fish does. The Board of
Fish relies on the advice of the Department of Fish and
Game. And the reason I said advice to the Board and
agenda change requests is sometimes you have local
managers that have a lot of expertise in a specific
area, but you have fisheries that transit that local
area and go to another local area. So, the Board often
times has had the benefit of talking to an area
management biologist there as well as an area
management biologist here that don't always have
exactly the same view of what regulatory change or what
science needs between those two regions…
SENATOR LINCOLN asked to see a copy of the resolution in support
of his appointment by the Bristol Bay fishermen.
SENATOR STEVENS said his question has to do with the Bering Sea
Crab Management Plan. About five years ago they reduced the
exploitation rate from 20% to 10% of the estimated biomass and
there is a sort of industry consensus from the harvesting sector
that that didn't do anything to save the biomass. All it did was
leave money on the table or product in the ocean to rot. He asked
Mr. Huber to expand on what sort of process the board might go
through internally to make a decision to either raise or lower an
exploitation rate of a resource that continually stays in the
ocean and regenerates.
MR. HUBER replied that he would take a stab at it although
shellfish is not his area of expertise. Stakeholders have
different opinions on what to do. Where the Department has
reliable information, they say they are comfortable with current
harvest levels.
SENATOR STEVENS said that this is something people are taking
guesses at and he wanted to know how Mr. Huber would go about
formulating his guess.
MR. HUBER replied:
You first formulate your guess by listening to
stakeholders, looking at what information there is,
whether it's scant or not. Then I think one of the
reasons that maybe this is a little bit harder to have
fun at than you would like it to be for me is the
legislative delegation is to conserve and to develop.
If the delegation was to just conserve, it would be an
easy job. If it was just to develop, it would be an
easy job, but that's the balance that's difficult. So,
when you have stakeholders wanting to develop and
managers saying we need to be conservative or you have
a situation where you don't know or are in doubt,
information is scant, I think you have to err on the
side of that conservation, because you can overdevelop
and not have the chance to conserve. That's the tough
part of the job of the Board of Fish. To say here's my
road map for doing it upon an individual or all issues,
I think is very difficult. I think it's going to take
being in that situation, listening to that discussion,
looking at the information and you may use a different
mechanism or process to get there in one area of your
fishery than you do in another.
CHAIRMAN TORGERSON thanked Mr. Huber for sitting one and a half
hours on the hot seat. He said they would next take up Gerry
Merrigan's nomination.
5:30 p.m.
MR. MERRIGAN noted that copies of his two-page resume are in
members' packets. He came to Alaska in 1977 and became a resident
in 1979 and has lived here ever since. He worked for the U.S.
Forest Service and ADF&G as a fish biologist. He currently holds
a Southeast salmon power troll permit and halibut IFQ. He has
also worked as a Dungeness crabber, gillnetter, seiner, longliner
and has fished for herring. He has fished in Bristol Bay as well
as Southeast and has landed king salmon on a sport rod. He has a
background as well in Canadian fisheries.
He concluded:
I think I can bring a good breadth of knowledge to the
Board process. Then when a member put my name in for
the Board I realized how little I actually do know.
It's clear to me how dependent the Board of Fish is on
public input and must maintain a working process to
provide that input…
CHAIRMAN TORGRERSON asked how he would handle allocation issues
for the sport fish industry since he is a commercial fisherman.
MR. MERRIGAN replied that he has been involved in allocation
issues between sport and commercial fisheries and believes one
has to work with people and be flexible to get a resolution. He
has seen good leadership emerging on the sport fish side. He said
he would do things on a factual basis. When it comes to an
allocation decision he would look at something consistent with
Board policy. He feels that he can talk to sport fishermen. "You
don't get away from Petersburg without being somewhat
knowledgeable on sport issues."
SENATOR WILKEN said he wouldn't support Mr. Merrigan's nomination
but it has nothing to do with him personally. He explained:
My concern is with our Governor not reappointing Mr.
Virgil Umphenour to the Fish Board and will hope that
when we have a new governor that I'll be able to talk
to him or her and make an attempt to have Mr. Umphenour
reappointed to a Board that he has served in Interior
Alaska with great distinction…
CHAIRMAN TORGERSON announced that the committee would hear from
Mr. Art Nelson next.
MR. ART NELSON said that he moved to Alaska in 1982 from Seattle
and has spent time in different areas of Alaska participating in
different types of fisheries. He worked with the Bering Sea
Fishermen's Association to assess the troubled king and chum
salmon returns in Western Alaska; that is a major issue the Board
will have to deal with in the future. He is currently employed by
the At-Sea Processors Association, which participated in the
Bering Sea polluck fishery.
SENATOR LINCOLN asked him to explain how he worked with
subsistence.
MR. NELSON said he was a fisheries specialist and advocated on
behalf of residents of the small boat commercial fisheries and
subsistence fishery needs to the Board of Fisheries and the North
Pacific Fisheries Management Council. He also started a program
to put escapement-monitoring projects out in various rivers.
SENATOR STEVENS asked what he thought the most crucial issue is
in front of the Board of Fisheries right now.
MR. NELSON said there would be a handful of issues that he
considers to be important for the Board, but probably the most
important over the next 5 to 10 years is the revitalization of
the state's salmon fisheries. There would be different solutions
for different areas and some areas might not need a solution.
SENATOR STEVENS asked how he saw the Board of Fisheries playing
in the procedure.
MR. NELSON replied that the participants in the fisheries have to
bring proposed solutions to the Board and then work with ADF&G.
SENATOR STEVENS said the issues facing the Cook Inlet drainage
are hot buttons because there are so many people and so many
individual users and user groups. He asked Mr. Nelson how his
education, training and experience in the industry can contribute
to solving that issue.
MR. NELSON responded that he hoped he could contribute to some
solutions there. He thought he had a balance in his life
experience with different fisheries to give him the ability to
see things from both sides of the table.
SENATOR WILKEN asked him if he knew Virgil Umphenour.
MR. NELSON replied yes.
SENATOR WILKEN asked if he felt comfortable replacing him on the
Board and representing Yukon Tanana River drainage issues.
MR. NELSON replied that he is not as familiar with Interior
issues as Mr. Umphenour was, but he is a friend and could sit
down with him and get more familiar with those issues. Even if he
isn't a Board member, he will be a member of the public in future
meetings.
SENATOR WILKEN asked if Mr. Nelson could "comfort" him by saying
he would use Mr. Umphenour as a reference for issues that have to
do with Interior river drainages should he have to make a
decision on those drainages.
MR. NELSON replied, "Absolutely."
SENATOR LINCOLN said she wanted some assurance that should he be
confirmed, he would never refer to her Yukon River as brown
water.
CHAIRMAN TORGERSON thanked Mr. Nelson for joining the committee.
SENATOR WILKEN moved that the committee report the names of Art
Nelson, Gerry Merrigan and Brett Huber to the full body for
consideration as nominees to the Board of Fish. There were no
objections and it was so ordered.
CHAIRMAN TORGERSON adjourned the meeting at 5:57 pm.
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