Legislature(1999 - 2000)
04/07/2000 03:20 PM Senate RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SJR 13-AK NATIVE ON PACIFIC SALMON COMMISSION
CHAIRMAN HALFORD announced that the committee would take testimony
on a proposed committee substitute (CS) for SJR 13 but, because
Senator Ward was called out of town, no action would be taken on
the legislation at this time.
LORETTA BROWN, aide to Senator Jerry Ward, sponsor of SJR 13,
explained that Senator Ward prepared a CS for SJR 13 which makes
the following changes. A section was added to page 2, beginning on
line 16, which reads:
WHEREAS the Magnuson-Stevens Fishery Conservation and
Management Act on the status of North Pacific Fisheries
Management Council consisting of 11 voting members of which
five members shall be appointed by the United States Secretary
of Commerce from lists of residents of Alaska submitted by the
Governor of Alaska;
MS. BROWN informed committee members that several people were
waiting to address this section via teleconference. She noted Mr.
Malatesta Sr. did some investigative work on this issue. Mr.
Malatesta will address the transcripts of his taped phone
interviews, copies of which were placed in committee members'
packets.
MS. BROWN said the other changes made in the CS are on line 16
through 26 on page 2, and on lines 3 through 9 on page 3.
SENATOR MACKIE asked if those sections ask the Secretary of
Commerce and the Governor to withdraw the appointees.
MS. BROWN said that is correct; they request that the nomination
process re-occur.
CHAIRMAN HALFORD asked Mr. Malatesta to testify.
MR. JOE MALATESTA SR. made the following comments. The Magnuson
Stevens Fishery Act is very important because it was developed for
the United States fishing industry to include bottomfish caught off
of the coast of Alaska. Section 302 specifically requires the
Governor to first consult with all users of the fisheries resource
before making any nominations. Mr. Malatesta said his concern is
with the process used by the Governor to conduct the people's
business and whether the Governor first consulted users about his
nominations. The Governor sent a letter to the Secretary of
Commerce dated March 15, 2000 stating that he met the culpability
requirements. The letter included a list of the names of 107
people he consulted with. Mr. Malatesta said he contacted five
individually named people, five fishing organizations, and the
owners or spokespersons of four processing companies on the list.
All 14 people that he spoke with told him that they had not been
contacted by the Governor or any representative of the Governor's
Office regarding the six nominees.
MR. MALATESTA repeated that the importance of this matter is that
the Governor wrote to the Secretary of Commerce and stated that he
did consult with certain individuals. He said no top executive
officer of any government may make deceiving or false
representations. The response from the Governor's Office is that
the Governor has a lot of leeway but he does not. Mr. Malatesta
said he is so upset because this Administration has been
circumventing the public process for other board appointments, such
as the Board of Fisheries. The Magnuson-Stevens Act contains no
penalty for this misstatement of truth, however when a law is
written and it lacks a penalty clause, it is left to the trier of
facts, perhaps a federal judge, to decide what the penalty shall
be. This Administration will go down in the history of this state
as the worst offender of circumventing the public process.
MR. MALATESTA stated that many people plan to bring their
complaints to the Secretary of Commerce and they may ask for a
review by a special prosecutor. He said his investigation has been
criticized because he randomly chose the individuals he contacted,
but his method was to choose five individual names and five fishing
organizations and all of the processors on the list. He asserted
that he did everything he could to be fair to the Governor. He
noted what upset him most about the Governor's March 15 letter to
the federal government is that the Governor attached the names of
people who provided advice about his nominations to the North
Pacific Fisheries Management Council (NPFMC). Those people were
never contacted.
MR. MALATESTA asked legislators to tell the Governor that they will
not stand for circumventing the public process by supporting SJR
13.
Number 824
SENATOR LINCOLN referred to the transcripts and asked Mr. Malatesta
who he is investigating this matter for.
MR. MALATESTA said he did this investigation on his own behalf but
he noted that when investigative interviews are conducted, one must
make sure that the person being interviewed is aware of the
interviewer's background. He stated he is the investigator for the
law firm of Arthur Robinson and Allan Beiswenger but he conducted
the investigation on behalf of over 150 commercial fishing families
and some Native groups that he does work for regarding fisheries
issues. He noted he is an advocate for jobs and for Alaska's
commercial fishing industry.
CHAIRMAN HALFORD asked testifiers to state support or opposition to
the version before the committee due to time constraints.
MS. SUE ASPELUND, Executive Director of Cordova Fishermen United
(CFU), stated CFU takes its responsibilities regarding appointments
to boards and commissions that regulate the Alaska fishing industry
very seriously. The NPFMC is one of the most important of those
commissions. CFU supports the CS. CFU is well known to the
Governor's Office of Boards and Commissions - they are in frequent
contact. CFU attended the United Fishermen of Alaska (UFA) meeting
in early March. It had prepared its recommendations for the
nominations. CFU members contacted the Governor's Office at that
time and were quite surprised about the disregard shown by the
Governor's Office for CFU's input.
MR. HERMAN FANDEL of Kenai said he owns three sport fishing
associated businesses in the Kenai area. He informed committee
members that about one week ago the Kenai Peninsula Borough
Assembly voted down Resolution 23. That same resolution is now
before legislators [SJR 13] with the intent of preventing the
nomination of a sport fishing representative to the NPFMC. The
sport fishing industry has no representative on this Council at
all. Commercial fishermen are opposing the appointment of one
person to the NPFMC simply because that nominee is a sport
fisherman. This sport fisherman has contributed endless time, work
and money to the protection of Alaska waters and its wild fish
stocks. He is very knowledgeable about Alaska's fisheries and he
will do an excellent job if appointed. He maintained there is more
to SJR 13 than meets the eye. He stated he is very strongly
opposed to SJR 13.
MS. KAREN MCGAHAN, representing herself, informed committee members
she has fished commercially and hopes to afford to do it again
someday. She could not believe that Governor Knowles nominated Bob
Penny for this position as Mr. Penny will act as a "fox in a
henhouse." Mr. Penny's main qualification is that he has a fishing
cabin on the Kenai River and Governor Knowles is often his guest.
His appointment is a nice thank you from Governor Knowles at the
commercial fishermen's expense. This appointment is outrageous and
biased and, if not illegal, it is unethical. She believes Governor
Knowles should withdraw Mr. Penny's name for the nomination.
MR. DON JOHNSON of Soldotna stated he is opposed to the proposed CS
for SJR 13. He views SJR 13 as a racist resolution. He believes
the fact is that someone is asking for an appointee to be on the
Council with a certain kind of ethnic background. He cannot
believe Senator Ward would put forth this legislation for others to
sign on to. A similar resolution was presented to the Kenai
Peninsula Borough one week ago. The Borough Assembly voted the
resolution down twice. The Assembly thought a lot was left to be
desired from Mr. Malatesta's investigative process. He stated the
Governor has no responsibility to speak to everyone in each fishing
group.
MR. BONDURANT, testifying from Kenai, informed committee members
that he attended a three day discussion of the International
Halibut Commission in Anchorage in January related to the halibut
issue. It was apparent that the representation was completely
weighted by commercial fishing participants. The State's trust
responsibility for common use resources is supreme and he was
surprised to hear Dr. Leaman, the Executive Director of the
Commission, state that both the Canadian and U.S. governments have
a robust commitment to the protection of the personal consumptive
users of halibut stocks. Mr. Bondurant said he believes that will
also be the policy when it comes to all the salmon fisheries. The
make-up of the NPFMC has been monopolized by commercial fishing
interests.
MR. BONDURANT maintained that since beach, wildlife and waters have
been recognized as a public trust resource through the centuries,
it would appear to be the responsibility of the trustees,
legislators, to support the rights of the public as a whole and
ensure proper representation for all public interests. This
pending issue must be viewed as an attempt at intimidation hiding
under claims of process violation. If there is to be any disparity
of that obligation of the Council membership as a majority, it
should be in favor of the interests of common personal users. He
offered to make copies available of papers he wrote to the
International Halibut Fisheries Commission, the NPFMC, and the
Alaska Sport Fish Division.
MR. PAUL SHADURA, a Kenai resident, stated support for the proposed
CS for SJR 13. He read a statement from Harry Bader regarding
interstate commerce, which he believes this issue is about. He
believes that the procedures to allow people to comment on the
people who represent them on such an important board should be
open.
MR. DAVID MARTIN said he has been involved in the fish and game
process for about 20 years and was chairman of an advisory
committee. He believes this issue is about using a public process
and knowing who the nominees are. He stated support for SJR 13
because it holds the Governor accountable for what the Magnuson Act
requires.
MR. MARK DUCKER emphasized that the public process is the backbone
of our entire government. In his opinion, he agrees almost
entirely with Mr. Martin in that the public process has been
circumvented in this case.
MR. GERRY MERRIGAN, representing the Petersburg Vessel Owners
Association (PVOA), said he cannot support the portion of SJR 13
related to the membership of the Pacific Salmon Commission as that
would necessitate opening up the congressional amendment
establishing the Act. That Act was recently renegotiated and
amended after a lengthy process. He suggested deleting that
portion of the resolution and moving it forward. PVOA members have
a long history with the NPFMC and have held several seats on it.
From his personal experience, knowing one area of the Southeast
fishery did not prepare him well for his three-year Council seat.
He expressed concern that none of the six nominees advanced by the
Governor were on a list known to the public, therefore
consultations described in the letter to the Secretary of Commerce
did not occur. The preferred nominees will represent a significant
departure from present Council structure and make-up. There has
been no public opportunity to ask or answer questions as to why.
MR. MERRIGAN pointed out that six other people submitted their
names for consideration. All six had some experience with the
Council process, ranging from serving on either the Council, the
Advisory Panel, Council committees, or at the very least, attending
a meeting. None of those names were advanced by the Governor.
Interested parties sought recommendations and endorsed some
applicants and not others, no doubt bruising some feelings
unnecessarily. One of the most insulting aspects of the Governor's
letter is that he said he consulted with the commercial and
recreational fishing interests of the State and he attached a list
of the names of over 100 groups and individuals. Yesterday, he
asked the Governor's Office how many of the groups and individuals
knew that Mr. Benton and Mr. Penny were potential nominees. The
response was honest, "Not many, very few." For these reasons, he
supports SJR 13.
MR. ARNOLD ENGE, a member of the Northern Panel of the Pacific
Salmon Commission for 12 years and a Petersburg resident, said the
Commission just completed a lengthy process to get the Treaty
renegotiated. Legislation will be required to change the make-up
of the Commission. The other parties to the Treaty from Canada and
the Pacific Northwest would insist that there be no change in the
power structure. Since its inception, the representatives on the
Pacific Salmon Commission have done a fine job representing all
people of Alaska. Alaska has been served well by that Commission
during times when Alaska was being ganged up on by others.
Consensus is required on all decisions made by that Commission.
MR. TOM GEMMELL, Executive Director of the United Fishermen of
Alaska, said his testimony is directed at the portion of the CS
that deals with the NPFMC. UFA did not address the other sections
of SJR 13 and deferred to its Southeast member groups to do so. In
UFA's letter [to the Governor] of March 10, UFA endorsed five
nominees for two of the seats and it was aware of two other people
with sport fishing interests who had applied at that time.
According to a printout UFA received from the Boards and
Commissions Office, two applications were received on March 13 and
two final names were received on March 15, the day the Governor
sent a letter to the Secretary of Commerce. UFA had no opportunity
to comment on those four names. He referred to a report published
by the Secretary of Commerce in January, 2000. In that report the
Secretary of Defense commented, "In consideration of the strongly
competitive commercial fishing and environmental interests in the
North Pacific fisheries, the current balance of inshore-offshore
gear groups and ecosystem representation should be maintained to
meet the apportionment requirements of the Magnuson Stevens Act."
MR. GEMMELL asked to correct a comment made previously and stated
that two people who represent sport and charter interests sit on
the NPFMC Advisory Panel. The halibut issue has been ongoing since
1993 and representatives of the sport fishing industry were heavily
involved in the committee work and elsewhere. One Council member,
Mr. Kyle, has been designated by the Governor to carry the ball for
the sport-charter fishermen. UFA is not opposed to changing the
representation of the Council, but it wants the process to be
public so that it can comment. The Governor's process only allowed
user groups to comment directly to the Secretary of Commerce. UFA
would prefer that discussions be held in Alaska first.
SENATOR MACKIE stated that some of the Southeast fishing
organizations testified at a previous hearing in strong opposition
to SJR 13 and gave compelling testimony about why the make-up of
the Pacific Salmon Commission should not be changed. He asked why
UFA has taken no position on that issue.
MR. GEMMELL replied that issue was brought up at the October UFA
meeting but UFA only takes positions on statewide issues.
SENATOR MACKIE remarked that he finds himself in a dilemma because
he thought the arguments made about the make-up of the Pacific
Salmon Commission by the Southeast fishing groups were compelling
yet that portion of SJR 13 has not been changed by the CS. He said
he recognizes UFA's dissatisfaction with the Governor over the
process used but the other problem remains. He questioned why UFA
has not looked at the make-up of the Commission.
MR. GEMMELL said this issue only came up last week and he has not
had time to poll the UFA board yet.
Number 2036
SENATOR TAYLOR noted the Governor's March 15 letter lists UFA as
the second organization that provided advice on his appointments.
MR. GEMMELL stated UFA met on April [March] 8 and he signed a
letter dated April [March ] 10 from the Board that named the people
it supported. He pointed out that the Governor stated, in his
letter to the Secretary of Commerce, that UFA provided advice. The
word "consulted" was not used. Mr. Gemmell noted UFA had no
opportunity to comment on the six names that went forward.
MR. JIM BECKER, a member of the Northern Panel of the Pacific
Salmon Commission and an interim member of the newly formed
Transboundary River Panel, made the following comments about the
part of SJR 13 that requests an additional commissioner to
represent Alaska Native issues. The Northern Panel opposes that
part of the resolution because it sees no need to add a new
commissioner. Opening up the whole process would be very
cumbersome. Alaska is well represented on the Pacific Salmon
Commission. One phenomenon is that all of the gear groups that
represent Alaska speak together with a unified voice before the
Pacific Salmon Commission. One Alaskan already sits on the panel,
and he has input on all of Alaska's positions with respect to the
treaty issues. The Southern Treaty tribes have their own
commissioners because they share harvest authority with their
respective states. That situation does not exist in Alaska. A
ten-year treaty has just been negotiated with Canada which provides
Alaska with stability with respect to harvest sharing among
fisheries. Alaska cannot just unilaterally add a new commissioner
to the Northern Panel. Alaska has an internal issue of subsistence
and Canada has an internal issue with its First Nation Settlement.
Those issues are not normally dealt with on the treaty level. He
noted that Mr. Dave Benton, who is on the Commission right now,
does an excellent job representing all of the interests in the
State of Alaska.
CHAIRMAN HALFORD thanked all participants and announced that SJR 13
would remain on the table. The committee then took up HB 108.
| Document Name | Date/Time | Subjects |
|---|