Legislature(2003 - 2004)
02/20/2004 03:35 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
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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.
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