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
txt
                                                                                                                                
           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.                                                                  

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