04/05/2013 01:30 PM Senate JUDICIARY

                  SB  60-BOUNTY ON SEA OTTERS                                                                               
                                                                                                                                
2:17:18 PM                                                                                                                    
CHAIR  COGHILL announced  the  consideration of  SB  60. "An  Act                                                               
relating to sea otter population management."                                                                                   
                                                                                                                                
2:18:01 PM                                                                                                                    
SENATOR  BERT STEDMAN,  Alaska State  Legislature, sponsor  of SB
, described  the industrial  harvest of  sea otters  in coastal                                                               
Alaska in the 18th and 19th  century that decimated the sea otter                                                               
populations. The  state attempted  to reintroduce the  species in                                                               
1965-1969 by relocating  402 sea otters to  the Southeast region.                                                               
They became a  federally protected species in  1972 when Congress                                                               
passed  the Marine  Mammal Protection  Act (MMPA)  and management                                                               
was transferred to  the U.S. Fish and Wildlife  Service. The MMPA                                                               
made it  illegal to harvest  sea otters for everyone  but coastal                                                               
Alaska Natives  who could do  so for subsistence and  purposes of                                                               
making or selling traditional artisanal crafts.                                                                                 
                                                                                                                                
SENATOR  STEDMAN  explained  that  in  1994  the  U.S.  Fish  and                                                               
Wildlife Service  (USFWS) approved the Conservation  Plan for Sea                                                               
Otters  in Alaska.  In  the  preface it  says  the  plan will  be                                                               
reviewed  annually  and  revised   every  three  to  five  years.                                                               
Contrary to  that directive,  the USFWS  never revised  the plan.                                                               
Over the  last 19  years the sea  otter population  has increased                                                               
exponentially and is devastating  the shellfish industries on the                                                               
western coast of Southeast Alaska.                                                                                              
                                                                                                                                
2:21:46 PM                                                                                                                    
SENATOR  STEDMAN  informed the  committee  that  there are  three                                                               
population stocks  of sea otters  in Alaska today.  The southwest                                                               
stock ranges  from Kodiak to the  end of the Aleutian  chain; the                                                               
central stock includes  Cook Inlet and Prince  William Sound; and                                                               
the southeast  stock ranges  from Dixon  Entrance to  Yakutat. In                                                               
Southeast,  the population  has been  growing between  12 percent                                                               
and 14 percent  a year. In 2012, the estimated  population of sea                                                               
otters in Southeast Alaska was  25,000, and 842 were harvested by                                                               
Alaska Natives. According to the  USFWS, the potential biological                                                               
removal  of sea  otters  from Southeast  to  sustain the  optimum                                                               
population is  2,180 annually. He  emphasized that the  intent of                                                               
SB 60 is to slow the growth rate, not eradicate the population.                                                                 
                                                                                                                                
He discussed the seafood diet of  the sea otter and the fact that                                                               
that they consume up to 25  percent of their body weight per day.                                                               
He  calculated  that the  current  population  of sea  otters  in                                                               
Southeast  consumes   over  148   million  pounds   of  shellfish                                                               
annually. For  perspective, the Dungeness crab  harvest last year                                                               
was  4.8 million  pounds. Current  estimates indicate  that since                                                               
1995, about $22.4  million in wholesale value has  been lost from                                                               
the commercial fisheries  due to sea otters. In  recent years the                                                               
Alaska Department  of Fish and  Game has closed 17  harvest areas                                                               
due to  sea otters. Crab  fishermen are  trying to get  away from                                                               
sea otters and gear is being  concentrated in fewer bays. He also                                                               
discussed  the concerns  that  arise from  trying  to follow  the                                                               
complicated MMPA regulations and the stiff penalties.                                                                           
                                                                                                                                
SENATOR STEDMAN explained  that SB 60 is intended  to encourage a                                                               
discussion between the  federal government and the  state to work                                                               
out an  arrangement so that  inhabitants can continue  to survive                                                               
in coastal Southeast as they have for thousands of years.                                                                       
                                                                                                                                
2:28:46 PM                                                                                                                    
CHAIR  COGHILL  expressed  interest  in hearing  more  about  the                                                               
jurisdictional question,  U.S. code 16, and  the legal challenges                                                               
associated with no management plans being forwarded under MMPA.                                                                 
                                                                                                                                
SENATOR STEDMAN said the jurisdictional  issues were mentioned at                                                               
the previous committee, but the  consensus appeared to be that it                                                               
was the purview of this committee.                                                                                              
                                                                                                                                
SENATOR  COGHILL  asked  Mr.  Bell   to  discuss  the  sea  otter                                                               
conservation plan in Alaska and the updates.                                                                                    
                                                                                                                                
2:30:32 PM                                                                                                                    
LARRY BELL,  Assistant Regional Director, U.S.  Fish and Wildlife                                                               
Service  (USFWS), agreed  with the  sponsor  that the  management                                                               
authority comes  from the Marine  Mammal Protection Act,  and the                                                               
management plan  is to  preserve and  protect. He  also confirmed                                                               
that  the strict  harvest provisions  are  limited to  qualified,                                                               
coastal dwelling  Alaska Natives for subsistence  purposes or for                                                               
Native crafts  and clothing. Other  provisions prohibit  the sale                                                               
and take except for the  aforementioned exclusionary purposes. He                                                               
acknowledged  that  the plan  is  outdated  and highlighted  that                                                               
USFWS has  learned a great deal  about sea otters since  the plan                                                               
was  implemented.  Multiple  stocks   of  sea  otters  have  been                                                               
identified,  one  of which  is  listed  as threatened  under  the                                                               
Endangered  Species Act  (ESA) and  is managed  under a  recovery                                                               
plan. The  other two stocks  are managed through  periodic review                                                               
and  stock assessment  reports  to determine  the  status of  the                                                               
species  throughout  their  range.  Those data  are  compared  to                                                               
determine   growth,  stability,   or   declines  in   population.                                                               
Determinations are  based on  that and  whether it  comports with                                                               
the management principles of the MMPA.                                                                                          
                                                                                                                                
2:33:00 PM                                                                                                                    
CHAIR COGHILL  asked him  to discuss  the requirements  to review                                                               
the plan, including the location in the document.                                                                               
                                                                                                                                
MR. BELL explained that there is  no requirement in law to have a                                                               
management  plan, but  the USFWS  is  required by  law to  manage                                                               
under the MMPA. Although the  plan hasn't been revised every five                                                               
years,  the stock  assessments that  provide the  needed data  to                                                               
implement management actions are done every three years.                                                                        
                                                                                                                                
CHAIR COGHILL asked if management  is based on area or population                                                               
and flow.                                                                                                                       
                                                                                                                                
MR. BELL  replied that  the three  stocks are  managed separately                                                               
and within each stock the management  is based on the sea otter's                                                               
range, movement  throughout the range, habitat  availability, and                                                               
relative numbers compared to the carrying capacity of the range.                                                                
                                                                                                                                
CHAIR  COGHILL inquired  if the  MMPA has  any management  scheme                                                               
that  talks about  the  decimated resource  that  the sea  otters                                                               
leave behind as they move from one area to another.                                                                             
                                                                                                                                
MR. BELL said the MMPA  doesn't address issues of managing marine                                                               
mammal  stocks  according  to  their  beneficial  or  detrimental                                                               
effect on other wildlife species.                                                                                               
                                                                                                                                
CHAIR COGHILL described that as a gap.                                                                                          
                                                                                                                                
MR. BELL  pointed out  that under  the current  management regime                                                               
the  qualified  user  group  has  no  season  dates,  no  license                                                               
requirements, and no bag limits. The  harvest is as liberal as it                                                               
can be.                                                                                                                         
                                                                                                                                
CHAIR COGHILL asked Mr. Fleener to discuss management practices.                                                                
                                                                                                                                
2:37:02 PM                                                                                                                    
CRAIG  FLEENER, Deputy  Commissioner, Alaska  Department of  Fish                                                               
and  Game  (ADF&G),  Anchorage, Alaska,  described  the  physical                                                               
characteristics of  sea otters, which  are members of  the weasel                                                               
family.  Because they  don't have  an  insulating blubber  layer,                                                               
they require about 25 percent of  their body weight in food every                                                               
day. He said that sea  otters are linked to declining populations                                                               
of crab, sea  urchins, clams, mussels, octopus,  and other marine                                                               
invertebrates  because those  make up  a  large part  of the  sea                                                               
otter  diet.  This has  resulted  in  fisheries restrictions  and                                                               
closures  in   Southeast.  Dive  fisheries  are   being  severely                                                               
affected  by  sea  otters,  including  Dungeness  crab,  red  sea                                                               
urchins, California  sea cucumbers, and geoduck  clams. Those are                                                               
valued at about $16 million annually.                                                                                           
                                                                                                                                
To a  lesser degree sea  otters consume shrimp, tanner  crab, red                                                               
king  crab, and  abalone.  He  said that  the  dive fisheries  in                                                               
Craig,  Sitka,  and  Petersburg  are  likely  losing  $2  million                                                               
annually due to sea otter  depredation. If the current trajectory                                                               
continues, those fisheries are not sustainable in Southeast.                                                                    
                                                                                                                                
MR.  FLEENER said  sea otters  are  an important  element of  the                                                               
Southeast   Alaska  ecosystem   and  should   be  managed   under                                                               
conservation principles, but they should  not be protected at the                                                               
expense  of other  elements  of the  ecosystem  or the  ecosystem                                                               
itself. Sea otters  are having a significant  predatory effect on                                                               
shellfish in Southeast, particularly  sea cucumbers and Dungeness                                                               
crabs. For a  number of years ADF&G has been  working with a wide                                                               
variety  of people  to  develop solutions  related  to sea  otter                                                               
impacts.  A number  of  options have  been  considered to  return                                                               
Southeast waters to a holistic  and more sensible ecosystem-based                                                               
management approach  that manages  for sustainable  shellfish and                                                               
sea otter populations.                                                                                                          
                                                                                                                                
These options  include: a  federal statutory  change to  ease the                                                               
restriction on the sale of  hides; returning management authority                                                               
to the state; legislative amendments  that exempt states from the                                                               
MMPA; exempting sea otters in  Southeast from the MMPA; assisting                                                               
coastal  Alaska   Natives  in  developing  MMPA   authorized  co-                                                               
management plans  that focus Alaska  Native sea otter  harvest in                                                               
important fishing areas; and working  with coastal Alaska Natives                                                               
with funding  applications that assist in  revitalizing Southeast                                                               
cottage industries.                                                                                                             
                                                                                                                                
ADF&G's long term goals have been  to encourage the USFWS to ease                                                               
federal enforcement on subsistence  hunters in Southeast; to work                                                               
with   USFWS  to   liberalize  the   federal  interpretation   of                                                               
handicraft items to be more  responsive to customs and traditions                                                               
of coastal Alaska  Natives; to work with Congress  to amend parts                                                               
of the  ESA and MMPA to  better reflect the health  and abundance                                                               
of Southeast Alaska  sea otter populations; to  work closely with                                                               
Southeast coastal  Natives to develop sea  otter management plans                                                               
that are  compliant with  the MMPA,  but encourage  increased sea                                                               
otter  harvest;   to  restore   shellfish  populations   to  meet                                                               
subsistence needs  and provide commercial  fishing opportunities;                                                               
to   restore  the   coastal  ecosystem;   and  to   seek  federal                                                               
reimbursement   to  commercial   fishermen   for  lost   economic                                                               
opportunity.                                                                                                                    
                                                                                                                                
MR. FLEENER discussed an unintended  consequence if the bill were                                                               
to go forward as currently  written. The USFWS could consider the                                                               
taking of  sea otters in  Southeast as financially  motivated and                                                               
not subsistence hunting and disallow  it. The agency may also see                                                               
the bounty  as a commercial  purpose and remove  Native's ability                                                               
to export  those furs.  It's also possible  that the  USFWS could                                                               
find increased  take due to  bounties, and close the  hunt. Since                                                               
there is no  differentiation between sea otters  in Southeast and                                                               
the  endangered sea  otters, the  state may  be found  liable for                                                               
encouraging the  harvest of an  endangered species.  The [bounty]                                                               
funds flowing  through ADF&G could  also be a problem  because it                                                               
isn't a coastal Alaska Native organization.                                                                                     
                                                                                                                                
He  highlighted  the possible  solutions.  The  funding could  be                                                               
provided  directly to  a coastal  Alaska Native  tribe or  tribal                                                               
entity;  exempting the  endangered sea  otters from  the bill  to                                                               
focus only on the Southeast  sea otter population; and promote an                                                               
ongoing   close   relationship  with   indigenous   co-management                                                               
entities to implement this program.                                                                                             
                                                                                                                                
With regard  to the jurisdictional  issues, Mr. Fleener  said the                                                               
primary goal  of the  MMPA is  to protect  sea mammals,  and it's                                                               
problematic when an act is put  in place to permanently protect a                                                               
species that doesn't need protection.  The state needs to address                                                               
that in the future, he said.                                                                                                    
                                                                                                                                
2:45:10 PM                                                                                                                    
CHAIR COGHILL  asked how it  would work to specify  Southeast sea                                                               
otters.                                                                                                                         
                                                                                                                                
MR. FLEENER suggested that the  best mechanism is to work through                                                               
the existing tribal entities to  avoid making any money available                                                               
for  harvesting  endangered  sea   otters.  The  focus  would  be                                                               
directly  on  the  sea  otters   that  are  negatively  impacting                                                               
shellfish.                                                                                                                      
                                                                                                                                
CHAIR COGHILL asked  if the state is managing  fisheries in areas                                                               
that have been negatively impacted by sea otters.                                                                               
                                                                                                                                
MR. FLEENER  said ADF&G  manages fisheries  in Southeast,  but it                                                               
can't  manage  the  sea  otters that  are  causing  the  negative                                                               
impact.  It's  not  the  best  course of  action,  but  the  only                                                               
management action  the department can  take on a fishery  that is                                                               
negatively  impacted is  to close  the harvest  when numbers  are                                                               
low.                                                                                                                            
                                                                                                                                
2:48:41 PM                                                                                                                    
SENATOR  MCGUIRE referenced  the  12/6/12  legal memorandum  from                                                               
Legislative  Legal Services,  and  read the  second paragraph  as                                                               
follows:                                                                                                                        
                                                                                                                                
     Providing  a state  bounty  for  harvested sea  otters,                                                                    
     even if the sea otters  are only taken by those persons                                                                    
     permitted  to do  so under  the MMPA,  is likely  to be                                                                    
     interpreted  as  conflicting  with  the  intention  and                                                                    
     purposes of the MMPA.                                                                                                      
                                                                                                                                
She told  Mr. Bullard  that she  respectfully disagrees  with the                                                               
opinion. The  bill makes it very  clear that the bounty  can only                                                               
be given  by ADF&G to  those who can  make a lawful  taking under                                                               
the MMPA. The  people who can lawfully take sea  otters are those                                                               
Alaska  Natives who  take for  subsistence purposes  or artisanal                                                               
purposes.  She  suggested that  saying  that  providing a  bounty                                                               
incentivizes the  taking of sea  otters is troubling,  but saying                                                               
the  bounty  is to  offset  costs  would  be valid.  She  further                                                               
suggested that  it was a  legitimate argument that the  state was                                                               
incentivizing lawful takings under the MMPA.                                                                                    
                                                                                                                                
ALPHEUS   BULLARD,   Legislative   Counsel,   Legislative   Legal                                                               
Services,   Legislative    Affairs   Agency,    Juneau,   Alaska,                                                               
acknowledged that  all arguments  are possible  and there  may be                                                               
other opinions.  However, the substance  of his opinion  was that                                                               
the bill  incentivizes taking sea  otters, which  is inconsistent                                                               
with protection  of sea  otters and  that is  the purpose  of the                                                               
federal act.  If the  bill becomes  law, he  believes it  will be                                                               
preempted.                                                                                                                      
                                                                                                                                
SENATOR MCGUIRE asked if it would  be more helpful if the sponsor                                                               
were to clarify  that it was lawful takings and  that the fee was                                                               
a  reimbursement  to  offset costs  associated  with  taking  for                                                               
artisan purposes.                                                                                                               
                                                                                                                                
MR. BULLARD said  it could be, but his opinion  was restricted to                                                               
the bill before the committee.                                                                                                  
                                                                                                                                
SENATOR  MCGUIRE  suggested  that  it  was  consistent  with  Mr.                                                               
Fleener's testimony, and that the  bill sponsor follow up on that                                                               
idea at a later time.                                                                                                           
                                                                                                                                
2:54:30 PM                                                                                                                    
CHAIR  COGHILL said  the committee  would  explore several  legal                                                               
avenues  and  look at  ways  to  bridge  the gap  on  conflicting                                                               
jurisdictional issues.  He asked the  sponsor if he  had explored                                                               
any of the avenues that Mr. Fleener listed.                                                                                     
                                                                                                                                
2:55:28 PM                                                                                                                    
SENATOR STEDMAN  said he touched  on them lightly but  thought it                                                               
would  be more  beneficial to  bring the  issue to  the judiciary                                                               
committee.  Referencing  the  comment by  Senator  McGuire  about                                                               
offsetting  the   costs,  he  suggested  that   the  costs  don't                                                               
necessarily have  to be offset  at the harvest level.  They could                                                               
readily be at  the tannery level or in the  area of marketing. He                                                               
reiterated that there  was room to increase the  harvest level to                                                               
several thousand per year.                                                                                                      
                                                                                                                                
CHAIR COGHILL  commented that  it may be  helpful in  the overall                                                               
protection of  the sea  otter if  the state were  to try  to keep                                                               
them  from destroying  the  ecosystem they  depend  on for  their                                                               
survival.                                                                                                                       
                                                                                                                                
SENATOR MCGUIRE  suggested that  it may not  be possible  to take                                                               
the  issue head  on in  all  areas. For  example, it  may not  be                                                               
possible to  convince the federal  government that the  sea otter                                                               
is no  longer worthy  of protection in  Southeast Alaska  or that                                                               
the  people  living in  Southeast  are  worthy of  maintaining  a                                                               
livelihood.  However, there  can be  agreement that  there is  an                                                               
exception under the  MMPA that allows for  subsistence hunting by                                                               
coastal  Alaska  Natives  and  the   taking  of  sea  otters  for                                                               
artisanal purposes.  To that end,  she believes it is  within the                                                               
sovereign  right of  the  state  to offer  the  fee. The  concern                                                               
perhaps  centers on  the  use  of the  term  "bounty" because  it                                                               
implies incentive.  She suggested the sponsor  and committee work                                                               
with Mr. Fleener to find a win-win solution.                                                                                    
                                                                                                                                
2:59:56 PM                                                                                                                    
CHAIR COGHILL stated his commitment to work with the sponsor.                                                                   
                                                                                                                                
[SB 60 was held in committee.]