Legislature(2007 - 2008)BUTROVICH 205
02/16/2008 11:00 AM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB229 | |
| SB237 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 253 | TELECONFERENCED | |
| *+ | SB 229 | TELECONFERENCED | |
| *+ | SB 237 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 237-MGMT OF SUSTAINABLE SALMON FISHERIES
CHAIR HUGGINS announced SB 237 to be up for consideration.
11:42:07 AM
JODY SIMPSON, Staff to Senator Charlie Huggins, Alaska State
Legislature, presented SB 237 on behalf of the Senate Resources
Standing Committee, sponsor. She said in 2001 the Alaska Board
of Fisheries (BOF) adopted the statewide Sustainable Salmon
Fisheries Policy, which recognized that threats to sustainable
management exist and justify developing an explicit statewide
umbrella policy to help guide fishery management plans and
programs; copies were available. Given the importance of salmon
in Alaska for consumptive use and commercial fishing, she said
it is vital to sustain salmon populations for future generations
by codifying this policy in statute.
MS. SIMPSON told members the Alaska Department of Fish & Game
(ADF&G) forecasts 5.6 million sockeye salmon will return to the
upper Cook Inlet in 2008; it forecasts 344,000 for the Susitna
River, 24 percent fewer than the 20-year average of 453,000.
Based on Bendix sonar counts estimated since 1981, sockeye
escapement into the Yentna River hasn't met the current
escapement goals for five of the past eight years. However,
ADF&G recently expressed low confidence in these harvest
estimates, and there is uncertainty about the accuracy of Bendix
sonar counts. To her understanding, weirs can allow
differentiating among salmon species, but sonar typically can't.
MS. SIMPSON reported this past month the BOF identified Susitna
sockeye as a stock of "yield concern"; a related document was in
packets. She said yield concern is defined in the Sustainable
Salmon Fisheries Policy as a concern arising from a chronic
[inability], despite the use of specific management measures, to
maintain expected yields or harvestable surpluses above a
stock's escapement need. It is less severe than a management
concern, which is less severe than a conservation concern.
Chronic inability is a continuing or anticipated inability to
meet escapement thresholds over a four- to five-year period.
MS. SIMPSON said many of Senator Huggins' constituents and
sports fishing advocates in the Matanuska-Susitna area had hoped
the BOF would address their concerns and reduce commercial nets
to allow passage of more salmon, mostly silvers bound for the
valley's streams. Instead, the board made small changes viewed
by many as favorable to commercial netters, including the
addition of some late-season fishing time and a slight de-
emphasis on windows.
MS. SIMPSON pointed out that committee packets contained
letters, resolutions, and e-mails indicating heightened
awareness. She said sports fishermen also want the state to
focus on genetic sampling of salmon entering the inlet on their
return to the Mat-Su; this assessment is ongoing, and the
department hopes the legislature will appropriate another
$10 million for further studies. Drawing attention to support
for putting this policy into statute and highlighting the Mat-Su
situation, she also noted the Department of Law (DOL), ADF&G,
and Board of Fisheries oppose putting this into statute; Lance
Nelson would speak to concerns and the fiscal note.
11:46:51 AM
CHAIR HUGGINS inquired about the status of Fish Creek today
versus eight or ten years ago.
MS. SIMPSON responded that she wasn't a biologist or fish and
game statistician, but could provide anecdotal information from
living there 20 years. She said a lot of folks in the area
remember years when the salmon yield was much higher and the
fish much larger. Because of concern about the escapement from
Fish Creek and Big Lake, some work is being done by the Cook
Inlet Aquaculture Association to look at whether Big Lake is
anaerobic now at its deepest levels.
CHAIR HUGGINS recalled a personal dip net fishery there, which
no longer exists.
MS. SIMPSON replied that was her understanding too.
11:48:23 AM
LARRY EDFELT, Member, Alaska Board of Fisheries, noted that
Board of Fisheries chairman Mel Morris had asked him to convey
again the board's opposition to making the Sustainable Salmon
Fisheries Policy statutory. The board feels it would reduce its
flexibility in responding to resource situations statewide, not
just at Cook Inlet.
MR. EDFELT said the policy took years to develop, with
participation from diverse user groups all over Alaska. That
there is a policy is a testimony to how hard everyone worked to
create a policy that would result in sustainable salmon
fisheries, which was the common goal. While the BOF tried to
open the policy up for amendment a couple of times, it met with
passionate opposition because people had worked so hard and
every word became critical to some user group or another.
MR. EDFELT pointed out that one reason the board opposes the
legislation is that the proposed statutory language differs
slightly from what the board adopted, with a lot of "shalls" in
the statutory language and "shoulds" in the board's policy. He
said DOL would present more detailed considerations.
11:50:35 AM
CHAIR HUGGINS asked what it means that "yield concern" is less
severe than "management concern."
MR. EDFELT deferred to DOL, noting the regulation is several
pages long.
CHAIR HUGGINS observed that it also states the latter is less
severe than "conservation concern." Saying friends and
neighbors are increasingly frustrated, he mentioned the Kenai
River and that a weir was proposed for deletion on the Deshka
River this year because of funding, without consultation with
anyone he knows. Here there is talk about the lack of fish, he
said, the extinction of fish. Whatever it is called, Chair
Huggins suggested the actions and numbers of fish are proof of
the pudding. He asked Mr. Edfelt to comment.
MR. EDFELT replied that certainly the board is interested in all
the research information it can get. It wasn't the decision of
the board to delete the Deshka weir; that was a policy decision
within the department.
CHAIR HUGGINS asked whether the board was consulted.
MR. EDFELT replied no. In defense of the department, he said
there is limited money for fisheries management and research
activities throughout Alaska. The board and department
constantly cry for more information, and it boils down to
funding. As for the Deshka River, he said he isn't sure that is
a terminal case. Salmon runs are cyclical in Alaska, and
sometimes runs are down and then good.
MR. EDFELT, noting he's attended BOF meetings since 1966, said
over 40 years Alaskan salmon runs have gone up, and the runs
generally are healthy. Although there are local stocks of
concern, generally the flexibility given to the board and the
department to manage has, to his belief, caused the increased
returns over the last several decades. It's flexibility that is
important, he emphasized.
SENATOR McGUIRE recalled that her family had a fishing lodge in
Bristol Bay for many years and similar arguments would break
out; when commercial fishing boats were in, runs were down along
the river. She asked: Is the board requiring that the gear
affecting bycatch of salmon be improved, or has that discussion
occurred? She gave her understanding that there is improved
gear to reduce bycatch for specific fisheries, but there also is
debate as to whether Alaska has implemented such policies or
enforced them as well.
11:55:26 AM
MR. EDFELT responded that the North Pacific Fisheries Management
Council (NPFMC) has jurisdiction over trawl fishery bycatch in
the Bering Sea. Although the BOF lacks authority, it is highly
interested and wants lower bycatch. In further response, he
opined there is little salmon bycatch in longline fisheries. As
for incidental catch of king salmon when someone targets
sockeye, he said the BOF has wrestled with that; it occurs in
more than one area. While it has been suggested that changing
the nets could allow larger kings to break through, to date the
board hasn't adopted such measures. Some research is required,
testing different types of nets to see what will retain sockeye
but not king salmon.
SENATOR McGUIRE asked whether lack of money for research hinders
putting such policies into place.
MR. EDFELT replied such a test fishery wouldn't be all that
expensive and could be done. However, sometimes what the board
wants isn't feasible within the department's budget. The BOF
doesn't have budgeting authority of its own.
11:58:00 AM
SENATOR STEVENS highlighted the bill's title, surmising that
opposition might wrongly be interpreted as being against
sustainable salmon fisheries. He asked Mr. Edfelt to address
reduced flexibility for the board statewide if this passes.
MR. EDFELT noted DOL would touch on this point as well. He said
anything that requires the board to take a certain view will
limit its flexibility. The Sustainable Salmon Fisheries Policy
is pages long, with things the board "should" look at when
adopting regulations. If those become "shall," an unnecessary
level of complexity will be introduced. A Chignik salmon
fishery involving one gear type doesn't require a complex policy
such as needed in Cook Inlet, for instance, where the desire is
to maximize 11 variables simultaneously. Board regulations
reflect those different types of complexities.
CHAIR HUGGINS mentioned that the Yentna River and Susitna River
are in the heart of this area under discussion for fish. There
isn't a moose season in that huge area, he told members, since
there aren't any moose. Noting ADF&G also manages that, he said
Mat-Su residents are losing patience. The fish are
disappearing, and the moose are almost extinct there. He
surmised this relates to lack of proactivity by ADF&G.
12:02:42 PM
SENATOR WAGONER related that he grew up in an area that once had
the world's largest salmon runs, the Columbia-Snake River
system. While more than one factor may reduce salmon runs, he
said one of the main things is numbers of people and
encroachment on salmon streams.
SENATOR WAGONER reported that he has taken $300,000 in the last
two years out of his discretionary capital funds and put it into
the districts of Senator Huggins and Senator Green, into the
hands of the Cook Inlet Aquaculture Association in order to
study some systems and see what some of the biological problems
are. He said there is just as much concern at Cook Inlet with
respect to those returns. He agreed that some is related to bad
counts; for instance, the aquaculture association determined
twice as many spawners go back to some areas as ADF&G had
believed.
SENATOR WAGONER told members this study is just a start of what
is needed for the Susitna River system. There must be a long-
term legislative commitment to funding to study the problem and
try to find a solution, if there is one. It might relate to
water quality, predators, or any number of things. But he said
this legislation won't determine the problem or help it.
12:03:12 PM
SENATOR GREEN suggested ADF&G should be pushing those studies
and asking for funds, though she didn't know whether that had
happened in past years. She questioned why anyone's
discretionary money should have to fund those studies. If ADF&G
needs information, she said, it should advocate for it.
SENATOR WAGONER agreed this should have happened long ago, but
said the department wasn't willing to step up. This information
gathering needed to begin. He'd thought it was important enough
for his area and the Mat-Su, he said, noting the Cook Inlet
Aquaculture Association encompasses the whole Cook Inlet
drainage including the Susitna. Informing members that he quit
commercial salmon fishing two years ago, Senator Wagoner said
commercial Cook Inlet salmon fishermen have been restricted by
the BOF since the early 1990s, but nobody in the department had
seemed to be seeking a solution. He suggested that is needed,
rather than this type of legislation.
12:05:04 PM
SENATOR GREEN offered that information brought to the department
which it hasn't requested won't have nearly as much impact,
since ADF&G biologists consider such information faulty.
SENATOR McGUIRE asked Mr. Edfelt for an example of where this
legislation would hurt a fishery. She surmised it could help
redefine activities and resources on the part of the department
and the board. If there is a fiscal note attached, she said, it
is a clear direction from the legislature that this is where the
legislature wants some resources to go.
MR. EDFELT replied that the fear is being inundated with
lawsuits from not addressing every single "shall" in the
legislation when the BOF adopts a proposal.
CHAIR HUGGINS read phrases in the bill related to habitat,
productivity, sustained yield, and so on, which he called
"motherhood and apple pie." He expressed concern about some of
the feedback. He mentioned fishing holes that he'd historically
flown over, deciding whether to land there, but said the fish
aren't there now. And someone can't fish on a weekend using an
airplane because of the numbers of people and lack of fish. It
isn't just the Susitna River, he added; it's even where people
don't live.
12:08:32 PM
TONY RUSS, Wasilla, representing himself, noted he is a lifelong
Alaskan who has fished the Kenai and the valley. There are
increasingly fewer fish, he said, though the Kenai has great
surges of fish and closures of a week or more result in more
silvers in the valley. He has been on the Matanuska Valley Fish
and Game Advisory Committee for the last year, as well as the
mayor's blue ribbon sportsmen's committee, attending meetings
and reading information; he attended BOF meetings two weeks ago.
MR. RUSS surmised part of the problem is that commercial
fishermen, with livelihoods at stake, go in force to meetings
and pay close attention to the numbers. He said the BOF tries
hard and does a great job with this immense burden, but much
work is done in subcommittees. As the only recreational user
listed at the recent meeting, he wondered if the board paid more
attention to those with more extensive knowledge.
MR. RUSS indicated he'd worked for ADF&G's Division of
Commercial Fisheries some years ago and has a biology degree.
He said reportedly there are 160,000 recreational users in upper
Cook Inlet, but some 1,200 commercial permits. He said Cook
Inlet produces perhaps 2.5 percent of the statewide salmon
harvest, and 99 percent of the people that live in upper Cook
Inlet that fish there - the recreational users - get 20 percent.
MR. RUSS opined that the Division of Commercial Fisheries has
the goal of helping commercial fishermen, that sports fisheries
work with what is left over, and that the BOF is too biased
towards commercial fishing. He said putting the policy into
statute will force compliance, perhaps even doing away with the
BOF, which works with the department. Expressing support for
SB 237, he said it would go a long way towards getting fish back
into the streams.
CHAIR HUGGINS announced testimony would be limited to three
minutes to accommodate all testifiers.
12:17:46 PM
RICKY GEASE, Executive Director, Kenai River Sport Fishing
Association, stated support for the BOF having the following in
regulation: a mixed-stock policy, a wild trout policy, and a
sustainable salmon policy. At the last BOF meeting, he said,
the board started making use of the sustainable salmon policy,
but there were a couple of interesting uses. For instance, the
policy references that the burden of conservation shall be
shared amongst user groups. In terms of a yield concern for the
northern district, the department presented information that
75 percent of the production in that district has to do with the
relative numbers of fish passing the Yentna weir.
MR. GEASE said a lot is heard about beavers and pike, but
75 percent of the lack of fish there relates to lack of fish
passing the Yentna sonar; in some ways, it relates to harvest in
the central commercial district. Instead of restricting drift
fishing in the central district and maintaining windows in the
set net fishery, where there are harvests of northern district
fish, he said the BOF just removed the burden of conservation
from the northern district commercial and sports fishermen by
saying there'd be no restrictions on either, thus removing the
burden of conservation from everybody - which flies in the face
of precautionary management within the policy. Suggesting there
should be restrictions looked at for commercial fishing in the
central district, he said the BOF decided against that.
MR. GEASE said things can be put into statute and regulation,
but it still comes down to how people enact rules and
regulations. He expressed dismay that at the last BOF meeting,
while a lot was heard about overescapement into the Kenai and
Kasilof Rivers, there wasn't much attention to underescapement
in the northern district. He suggested the policy being
discussed could be useful in statute, although DOL would express
concerns. He opined that it is "apple pie" at its heart,
something the BOF and department need to pay attention to, which
he didn't believe happened adequately at the last board meeting.
12:21:35 PM
BRUCE KNOWLES, representing himself, noted he'd served on boards
and on committees with the BOF. As for a yield concern versus a
management concern, he explained that the former is a first
step; if it fails, it proceeds to step two and step three, with
the latter meaning serious trouble. Thus he'd submitted
paperwork to have a yield concern; others requested included
Fish Creek - which had been at the management concern level but
was taken off, although it continues to miss its escapement
goals - and a third, for chum salmon, for which he said the
department knows the harvest has dropped from 1.1 million to
less than 80,000 and yet it refuses to touch it.
MR. KNOWLES told members a year ago in October the Matanuska
Valley advisory committee submitted proposals for agenda change
requests to the board, but it was turned down by the board at
the direction of DOL, which said "you don't have to take the
policies and work them on agenda change requests." He feels
this has happened in more than one area. Citing the stocking
program policy against damaging native runs, he said the Fish
Creek native run has been destroyed and the same is happening
with other creeks around Cook Inlet.
MR. KNOWLES recalled that the board increased the size of nets
by about an inch, allowing more king salmon harvest in the
central district. He said the department knows if proper
precautions are taken between July 1 and July 15-20, "we will
get our stocks to the northern district." Citing restriction of
the drift fleet two years ago when the Kenai was having trouble
meeting escapement goals, he said there are adequate runs this
year for coho and other species, although the escapement goal
hasn't been met on the Yentna. He concluded that restricting
the fleet does has an effect.
MR. KNOWLES suggested this legislation is needed to put people's
feet to the fire and remove personal judgments. Recalling at
the last BOF meeting a commercial fisherman said repeatedly that
he needed the sustainable salmon policy for Cook Inlet, Mr.
Knowles said he was shocked to hear it. Mr. Knowles spoke in
favor of a law that says a sustainable salmon policy is needed,
in order to have integrity with respect to ADF&G and its
management of Cook Inlet.
12:26:00 PM
ROD ARNO, Executive Director, Alaska Outdoor Council (AOC),
explained that AOC is a statewide organization of some 10,000
hunters and fishers. Conveying AOC's support for SB 237, he
said the sustainability policy is "motherhood and apple pie"
that will result in conservation, protection of other uses, and
economy to the state. He surmised it will be much clearer for
the public to understand than the policy or the handout prepared
by the BOF for its last meeting.
MR. ARNO said he'd spent the last 15 years, from the start of
the intensive management law for game, attending Board of Game
meetings; without that law, which set population and harvest
objectives, he believes the state wouldn't have its active game
management, which is starting to show positive effects. When it
was first introduced, he recalled, DOL and ADF&G opposed it,
concerned about its effect on the process; however, the
department has successfully defended it from injunctions to stop
the predator control program.
MR. ARNO said the department, working with the administration,
has legislation to modify it again, the third time in less than
a decade that amendments have been proposed so the board and
department can function without disruption. He predicted the
sustainable salmon fisheries policy would experience the same
metamorphosis.
12:29:29 PM
VIRGIL UMPHENOUR, Chairman, Fairbanks Fish and Game Advisory
Committee, informed listeners that 12 of the 15 advisory
committee members were present at the teleconference site.
Mr. Umphenour said he was one of the Board of Fisheries members
that wrote the sustainable salmon policy. He'd been frustrated
about not having a definition of "sustained yield" and had
discussed it with fellow BOF member Dr. John White; he mentioned
concern about commercial fishing interests in blue water.
Mr. Umphenour and Robin Samuelson wrote a two-page definition,
and then he and Dr. White discussed the need for a sustainable
policy that boards would have to follow.
MR. UMPHENOUR recalled there were changes on the board and Dan
Coffey helped a lot. After the BOF asked the department for
help from independent scientists, half a dozen from the Western
U.S. helped over a year's time. He indicated the board met in
Girdwood after the policy was written and then took it
throughout Alaska to every board meeting, scheduling input,
holding discussions, forming a committee, and so on. Four years
were spent, and it finally went into regulation. No seated
board member that signed the recent resolution worked on the
sustainable salmon policy, he added, saying the meat of the
proposed statute is to change about four "shoulds" to "shalls."
MR. UMPHENOUR asserted that the board violated the sustainable
salmon policy at its last meeting. The Yentna stock was a stock
of concern 12 years ago when he was on the board; it hasn't
changed. Then, he said, rather than addressing the problem, the
board expanded an intercept fishery and let Cook Inlet drift
gillnetters fish on those stocks, as well as northern district
set netters. Calling this a flagrant violation, he stated his
belief that the policy needs to be in statute.
12:33:14 PM
MIKE TINKER, Fairbanks Fish and Game Advisory Committee,
speaking in favor of SB 237, said there are lots of reasons to
codify the policy. Highlighting two resolutions from the
present Board of Fisheries, he said previous boards that
developed the policy realized the guidelines were desperately
needed for uniform regulation, for emphasis on fish stocks that
weren't doing well, and for allocation decisions. The present
board opposes SB 237, he said, "in my opinion acting like
disgruntled teenagers rebelling against parental control."
MR. TINKER offered his belief that the assumptions in the BOF's
resolution are incorrect, although he agreed the policy was
fully and properly developed. He said statutory protection for
the policy would strengthen its effect on fisheries management,
since otherwise it could be repealed through a simple board
vote. Disagreeing that codification of intensive management
(IM) for wildlife caused lawsuits, he said minutiae demanded by
a frustrated ADF&G - placing details of the IM process into
Title 16 - caused the lawsuits. He suggested that a bill from
the administration to remedy this problem shows the system is
working, since a problem that arises can be fixed.
MR. TINKER disagreed with a statement in the BOF resolution that
there is no identified problem. He proposed examining BOF
meeting records over several years, which he said show
complaints from advisory committees, the public, and subsistence
fishermen. He mentioned unmet spawning escapements and
international treaty obligations, as well as ignored stocks of
concerns and lack of action for protections. Saying SB 237 is
needed for future generations, he added that the BOF needs to
stop complaining and follow the policy, which he indicated will
allow the board to avoid getting sued.
12:36:11 PM
HAL HUME, Fairbanks Fish and Game Advisory Committee, a nine-
year member, concurred with Mr. Umphenour and Mr. Tinker and
stated support for SB 237. He said this adds statutory strength
to the commonsense approach of management for sustained yield of
Alaska's salmon fisheries. Citing a 12/2/05 BOF meeting in
Valdez, he said significant testimony showed upstream
subsistence users in villages have seen dramatically fewer
salmon in Copper River tributaries. Also, his family has fished
the Gulkana River many years and noticed a significant reduction
in size and abundance of king salmon. Saying this must be
corrected for future generations, Mr. Hume predicted SB 237 will
help significantly in protecting the salmon fishery.
MR. HUME opined that the current BOF has a bias towards
commercial fishermen. Noting page 2, line 5, subparagraph (c)
of SB 237 says management "shall" be based on certain criteria,
he said this is essential to assure compliance with principles
and criteria established over many years by competent board
members and others concerned with long-term sustainability of
Alaska's fisheries. He emphasized that Alaska's fish and game
belong to all, not just the commercial industry. Estimating
there are over 15,000 upstream users of the Copper River
drainage alone, he said the BOF must begin serving everyone.
12:38:47 PM
DR. JOHN WHITE, Bethel, expressed his personal support for
SB 237, noting he is a long-time commercial and sport user of
fisheries resources in that region and had been a BOF member for
seven years, serving as chair; during that time, the
aforementioned policy began. He said having that policy in
regulation today allows the board and the public to understand
what is necessary for salmon resources and their conservation.
DR. WHITE agreed this comes down to "should" or "shall." He
suggested the issue is whether the legislature chooses to create
a firewall - that the board shall do things to conserve stocks,
providing a clear record for the public and the legislature. He
surmised such a firewall would prevent board action and ongoing
management actions by ADF&G that create "train wrecks" regarding
salmon resource conservation. "Should" allows the board to look
the other way, he said, which only the legislature can prevent.
Referencing testimony from Fairbanks and the Matanuska-Susitna
regions, he surmised people from the Arctic-Yukon-Kuskokwim
(AYK) region also would say they'd witnessed such train wrecks.
DR. WHITE expressed concern that budgetary issues affect
research and that there won't be information for the board to
act on in the future. He also encouraged the committee to
ensure that the bill, if it passes, includes the definitions
sections from the regulations, 5 AAC 39.222. He said the devil
is in the details, and the bill lacks clarity in this respect.
CHAIR HUGGINS asked how long "should" has been the operative
term.
DR. WHITE answered from day one in this policy.
12:44:22 PM
REUBEN HANKE, Kenai River Sport Fishing Association, stated
support for SB 237 and lauded Dr. White's testimony. He
recalled the last BOF meeting, saying the board did only half of
what was needed: starting to look at research needs in the
northern district, but failing to come up with a management
plan. As a result, as Mr. Umphenour had mentioned, there is
extended fishing time on fish headed for the northern district,
as well as extended time in the central district, to the middle
of the month; thus Mr. Hanke said he wonders how long it will be
until there is a concern for those coho salmon as well.
12:46:02 PM
LANCE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Anchorage), Department of
Law, spoke in opposition to SB 237. Involved with BOF work for
almost 20 years, on both the regulatory side and the enforcement
side, Mr. Nelson specified that he was speaking on behalf of
DOL; while he would express concerns of the board and ADF&G,
others such as Mr. Edfelt could speak for themselves.
MR. NELSON said while believing the bill is well intentioned,
DOL has serious concerns about its language and effect on the
regulatory process for the BOF and ADF&G in Alaska. He pointed
out that there was an effort to remove the aforementioned policy
from regulation last year and just put it into policy; that got
no support from the BOF. He indicated the board is trying to
ensure closer compliance with the standards it set for itself,
with renewed emphasis on criteria and standards in the policy.
MR. NELSON highlighted testimony that the operative word in the
policy is "should." He told members there are lots of "shalls"
and "wills" in that policy. Indicating DOL created a summary
for the board and public to use in addressing the policy
criteria during the board process, he said two pages of
standards and criteria are prefaced by the mandatory "shall"
language in the regulation itself.
MR. NELSON said one problem is that most of the concern focuses
on a few areas, but the statute would apply statewide; it could
present real challenges for the BOF in regulating the state's
fisheries. Also, the bill sets difficult or perhaps impossible
standards and will likely result in unexpected consequences.
For instance, paragraph (a)(1) references a comprehensive
policy. He asked whether that means every regulatory plan must
be comprehensive, an unrealistic standard for many stocks
throughout Alaska, based on the amount of information DOL has
and the amount of interest in some of those stocks.
MR. NELSON addressed paragraph (a)(2), saying almost all plans
are designed to achieve maximum or optimum salmon production.
The BOF would have to supply affirmative data on each of the
listed criteria and formally consider all criteria, regardless
of whether each was an important factor in the particular
proposal before the board. In such cases, he said,
consideration would tend to be a formal, rote recitation of the
criteria, without translating into better, more informed
decisions. However, failure to expressly address any of the
criteria could result in successful legal challenges against
board regulations.
12:50:11 PM
MR. NELSON noted a major concern relates to subsection (b) of
the bill. He said DOL believes the phrase "must ensure" sets an
impossible standard for salmon management. "Ensure" means to
guarantee a result; this is impossible given how salmon return
and the state's limited ability to control their life cycle.
And although the BOF has limited control over the marine habitat
of salmon and no power to guarantee the sustained economic
health of Alaska, he said subsection (b) requires regulations to
do those things.
MR. NELSON turned to paragraph (c)(1), saying even the sustained
yield provisions of Alaska's constitution don't mandate that
salmon stocks be maintained to ensure sustained yields. The
constitutional provisions say fish shall be utilized, developed,
and maintained on the sustained yield principle, subject to
preferences among beneficial uses. That language has been
interpreted with flexibility in light of the record of the
Constitutional Convention, he said, which states, in pertinent
part, the following:
As to forests, timber volume, rate of growth, and
acreage of timber type can be determined with some
degree of accuracy. For fish, for wildlife, and for
some other replenishable resources ..., it is
difficult or even impossible to measure accurately the
factors by which a calculated sustained yield could be
determined. Yet the term "sustained yield principle"
is used in connection with the management of such
resources. When so used it denotes conscious
application insofar as practicable of principles of
management intended to sustain the yield of the
resource being managed. That broad meaning is the
meaning of the term as used in the Article.
MR. NELSON noted the Alaska Supreme Court recognized, in
elaborating on the flexibility for sustained yield, that "the
primary emphasis of the framers' discussions and the glossary's
definitions of sustained yield is on the flexibility of the
sustained yield requirement and its status as a guiding
principle rather than a concrete, predefined process." On the
other hand, he said, the bill's language imposes a standard of
strict guarantees that DOL believes the board won't be able to
use in many instances.
12:52:22 PM
MR. NELSON alluded to paragraph (c)(2), saying the directive
"shall be managed to allow escapement within ranges necessary to
conserve and sustain wild salmon production and maintain normal
ecosystem functioning" is problematic. There are variables in
salmon management. The Alaska Supreme Court recognized - in the
Native village of Elim case as well - that the board has to
consider weather, natural predators, competition with other
fish, international fishing efforts, water pollution, improved
efficiency of fleets and fishing methods, and that several
different species of salmon travel through one fishery, creating
a mixed stock that increases management challenges.
MR. NELSON also pointed out that salmon have a fluctuating cycle
that makes estimating returns from year to year difficult, even
under the best conditions. Hence, he said, DOL believes using
mandatory terms like "shall" and "ensure" in a salmon management
statute sets up unrealistic expectations and invites legal
challenges, which are much more likely to be successful with
such mandatory language.
MR. NELSON opined that paragraph (c)(4) could be interpreted to
require the board to shut down any mixed-stock fishery that
involves take of a depleted salmon stock, regardless of
consequences to other fisheries or other escapement objectives.
Thus a relatively low rate of interception of a depleted stock
could result in closing a fishery, causing significant
overescapement and possibly harming production of another stock,
even while providing little benefit to the depleted stock.
Failure to define "depleted" and "actively restored" also raises
legal concerns, he told members.
CHAIR HUGGINS requested that Mr. Nelson provide his comments on
specific concerns in writing.
MR. NELSON agreed, indicating he'd sent comments to the chair's
office. He summarized by saying the problem with the bill is
that while it is well intentioned, it sets impossible standards
and won't give the results people expect. Just setting criteria
doesn't mean BOF members will view certain fisheries
differently, with more emphasis. He said the board process is
very useful and, in his mind, effective - gathering information
from interested parties and coming up with reasonable decisions.
MR. NELSON pointed out that over the years, board members view
things differently and make adjustments. He also said the whole
story from the last board meeting wasn't heard today; more can
be found in the record than just dissatisfaction with BOF
actions. He concluded by saying he believes a comprehensive
policy like this will cause more damage to the process than it
will help it.
12:56:08 PM
SENATOR GREEN asked if this is based on current regulations that
are in policy.
AN UNIDENTIFIED SPEAKER replied yes, for the most part.
SENATOR GREEN said she needed to see a copy of the regulations
to see where they've been merged and changed.
12:56:41 PM
CHAIR HUGGINS said intensive management is being done for game,
and there is legislation at the request of the administration.
He asked Mr. Nelson whether he was familiar with that.
MR. NELSON answered that he was generally aware of it, but
didn't work on the game side.
CHAIR HUGGINS asked Mr. Nelson to adopt that philosophy and
bring some solutions. He noted solutions proposed in the
current bill were brought forward by constituents and others to
try to solve what some perceive as a problem.
MR. NELSON replied that to the extent the attorney general,
commissioner of ADF&G, and BOF would authorize him to do that on
their behalf, he'd certainly do so.
CHAIR HUGGINS said he'd like Mr. Nelson to do it on behalf of
Alaskans, who pay his paycheck.
12:58:26 PM
SENATOR STEVENS opined that Mr. Nelson's cautions were highly
important, talking about unexpected consequences, unrealistic
expectations, and that it could cause more damage than it would
help. As to whether he could actually bring solutions, Senator
Stevens said that's another issue. Recalling that Mr. Edfelt
said this legislation, if passed, would reduce the board's
flexibility because it would apply statewide, Senator Stevens
asked whether that was Mr. Nelson's conclusion as well.
MR. NELSON affirmed that. As an illustration, he said Cook
Inlet has a small pink salmon run in a particular stream. Given
decreased interest in pinks compared with sockeye, kings, and
silvers in other areas of Cook Inlet, is the information
available to guarantee proper escapement, sustained yield, and
diversity for that particular run? He said probably not. If
the board must take mandatory actions, how will that impact
sockeye fisheries, coho salmon, and other stocks in other
places? If anyone pushes that issue and sues over it - people
opposed to fishing in general because of concerns about Beluga
whales, for example - what corner will the board be boxed into?
He said that concerns him.
SENATOR STEVENS reiterated how important he believed it was to
listen to Mr. Nelson, saying he looked forward to his written
comments and hearing more from him in the future.
CHAIR HUGGINS stated the intention of having Mr. Nelson testify
in person if possible, but said he was looking for solutions.
1:01:17 PM
BILL LARRY, Fairbanks Fish and Game Advisory Committee, stated
support for SB 237. He said there are many sport fishermen, and
this has been totally controlled by commercial fishermen, which
must stop. He surmised passing the bill would be the best
thing. He said the ADF&G folks are paid by Alaskans, and he
believes they need to "get out and start doing some work."
1:02:41 PM
BYRON HALEY, President, Chitina Dipnetters Association,
Fairbanks, voiced support for SB 237. He said at the last
annual meeting of the AOC and the Alaska Fish and Wildlife
Conservation Fund in Anchorage, February 8-10, Mr. Umphenour,
Mr. Edfelt, and Dr. White presented this and there was a vote to
support this issue. On behalf of the Chitina Dipnetters
Association, Mr. Haley said, he'd voted to support it strongly.
CHAIR HUGGINS asked whether anyone else on teleconference wished
to testify; there was no response.
1:04:27 PM
JERRY McCUNE, United Fishermen of Alaska (UFA), told members he
hadn't planned to testify, but wanted to respond to today's
testimony. He said UFA is the biggest statewide commercial
fishing organization and opposes SB 237 for the reasons stated
by Mr. Nelson. Specifying that this isn't opposition to
sustainable fisheries, Mr. McCune voiced support for any studies
that come up with results. The UFA doesn't want stocks of
concern anywhere, he said, whether the Mat-Su or Bristol Bay.
That isn't good for anyone including commercial fishermen,
sports fishermen, guides, or those who fish for personal use.
MR. McCUNE noted he'd listened to public testimony at the BOF
meeting for two days; both sides can get a little testy. He
said he doesn't begrudge a guide or anyone else making a living.
Commercial fishermen are trying to do just that, and those
fishing for personal use are trying to take fish home for food.
He spoke in support of trying to get funding for the Mat-Su that
will give results, but not studies for their own sake
MR. McCUNE discussed the fragility of lake systems with sockeye,
citing Coghill Lake, where escapement collapsed after too many
fish were added and it took years of work to fix it. He also
gave his understanding that Mat-Su lakes aren't producing big
enough smolts, which may require feed or another solution. He
said all fishing interests should sit down together to ensure
there are no stocks of concern, no matter where. He suggested
getting ADF&G on top of this, with studies that give results, to
make those systems more productive for all users.
SENATOR GREEN asked if this was similar to the conversation
during the Fairness in Salmon Harvest (F.I.S.H.) Initiative.
MR. McCUNE laughed and said it probably was; he offered
recollections about that time. Returning to SB 237, he said
commercial fishermen want to stay in business and also keep the
stocks healthy; he cited personal examples, saying of course
commercial fishing should be cut back if there is any problem in
meeting escapement goals. While most fishermen aren't happy
about it, he added, they know it's best for the resource.
MR. McCune agreed with Mr. Nelson that this bill will tie the
hands of the BOF and ADF&G. For example, if one stream has only
50 fish returning whereas another has a million, the bill
requires shutting down the whole area. Saying the BOF policy
has worked pretty well and is used by the board a lot, and that
there are unhappy parties on both sides of the issue, Mr. McCune
expressed willingness to help with respect to the Mat-Su and
ensuring there are no stocks of concern in Alaska.
CHAIR HUGGINS spoke about recent good fishing at Coghill Lake
but also highlighted the need to correct the situation in upper
Cook Inlet. He held SB 237 over.
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