03/03/2004 03:30 PM Senate RES

        SB  70-BD OF FISHERIES MEETINGS/EMERGENCY ORDERS                                                                    
                                                                                                                              
VICE CHAIR  THOMAS WAGONER called  the Senate  Resources Standing                                                             
Committee meeting  to order  at 3:30  p.m. Present  were Senators                                                               
Ben Stevens, Fred Dyson, Ralph  Seekins, Kim Elton and Vice Chair                                                               
Thomas Wagoner.  Senator Georgianna  Lincoln arrived at  3:36 and                                                               
Chair Scott Ogan arrived at 5:05.  The first order of business to                                                               
come before the committee was SB 70.                                                                                            
                                                                                                                                
VICE-CHAIR WAGONER  said that no  testimony would be taken  on SB
, but a  letter from Commissioner Duffy would be  read into the                                                               
record.                                                                                                                         
                                                                                                                                
MS. AMY SEITZ, staff to Senator Wagoner read the letter:                                                                        
                                                                                                                                
     Thank  you for  your  February 23  letter requesting  a                                                                    
     written statement  of my  authority as  commissioner to                                                                    
     issue emergency  orders under  AS 16.05.060.  As stated                                                                    
     in your  letter, there has  been some  discussion about                                                                    
     whether  section 2  of SB  70, an  act relating  to the                                                                    
     emergency order  authority of the commissioner  of [the                                                                    
     Department of]  Fish and  Game and  to meetings  of the                                                                    
     Board of Fisheries, it  would expand the commissioner's                                                                    
     EO   [executive  order]   authority   to  supersede   a                                                                    
     regulatory decision adopted by  the Board of Fisheries.                                                                    
     The scope  of the commissioner's authority  to issue an                                                                    
     EO that  contravenes a management  plan adopted  by the                                                                    
     Board of Fisheries was addressed  by the Alaska Supreme                                                                    
     Court in  Peninsula Marketing Association  (PMA) versus                                                                    
     Roper.                                                                                                                     
                                                                                                                                
     The Department  of Law  has advised  me that  under the                                                                    
     PMA  case,  EO  authority  includes  the  authority  to                                                                    
     override a board-adopted management  plan, but only if,                                                                    
     in the  judgment of the  commissioner or  his delegate,                                                                    
     doing  so is  justified  by new  information or  events                                                                    
     that  have  arisen  since  the   time  of  the  board's                                                                    
     decision.                                                                                                                  
                                                                                                                                
     Section 2 of  SB 70 authorizes the  commissioner to, on                                                                    
     the basis  of new  information, supersede  a regulatory                                                                    
     decision  of the  Board  of Fisheries  by  means of  an                                                                    
     emergency order.  I consider  that to be  a restatement                                                                    
     of   authority   that   is  already   vested   in   the                                                                    
     commissioner under the current  version of AS 16.05.060                                                                    
     and  the  PMA  case.  Accordingly, I  do  not  consider                                                                    
     section  2 of  SB 70  to expand  the commissioner's  EO                                                                    
     authority. I trust this response  to your enquiry and I                                                                    
     would be  happy to provide additional  information that                                                                    
       might be helpful to your work on the fish and game                                                                       
     issues.                                                                                                                    
                                                                                                                                
     Sincerely,                                                                                                                 
     Kevin C. Duffy, Commissioner                                                                                               
                                                                                                                                
VICE CHAIR WAGONER commented that the letter speaks for itself.