Legislature(2001 - 2002)
04/24/2001 03:05 PM Senate ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON
ADMINISTRATIVE REGULATION REVIEW
April 24, 2001
3:05 p.m.
HOUSE MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Jeannette James
Representative Joe Hayes
HOUSE MEMBERS ABSENT
All House members present
SENATE MEMBERS PRESENT
Senator Robin Taylor, Vice Chair
Senator Georgianna Lincoln
SENATE MEMBERS ABSENT
Senator Lyda Green
OTHER LEGISLATORS PRESENT
Representative Drew Scalzi
COMMITTEE CALENDAR
NEW MARICULTURE REGULATIONS
REVIEW OF UPDATED INFORMATION FROM DEPT ON PIONEERS' HOMES
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
DOUG MECUM, Director
Division of Commercial Fisheries (DCF)
Alaska Department of Fish & Game (ADF&G)
PO Box 25526
Juneau, Alaska 99802-5526
POSITION STATEMENT: Testified to clarify issues regarding
mariculture regulations.
SHANNON O'FALLON, Assistant Attorney General
Natural Resources Section
Civil Division (Juneau)
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on behalf of DOL.
STEVEN LaCROIX
PO Box 5322
Ketchikan, Alaska 99901
POSITION STATEMENT: Testified as one of the appellants in the
case of ATS & Zaugg et al. v. Alaska et al. as well as a geoduck
farmer.
SCOTT THOMAS, Managing Member
Alaska Trademark Shellfish (ATS)
Ketchikan, Alaska 99901
POSITION STATEMENT: Testified that the changes in policy
brought about by the new regulations would have kept him out of
"aqua-farming", had he known of them prior.
BRUCE WEYHRAUCH, Attorney
Law Office of Bruce B. Weyhrauch, LLC
114 South Franklin Street, Suite 200
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of his clients and
their suit against the state.
ROBERT HARTLEY, Shellfish Farmer
(No address provided)
Homer, Alaska 99603
POSITION STATEMENT: Thanked the committee for helping in the
process and being more fair than the department.
MELANIE DOUGLAS Aquatic Farmer
(No address provided)
Kenai, Alaska 99611
POSITION STATEMENT: Voiced concerns about the regulations.
JULIE DECKER, Executive Director
Southeast Alaska Regional Dive Fisheries Association (SARDFA)
(No address provided)
POSITION STATEMENT: Testified on behalf of SARDFA.
RODGER PAINTER
Alaska Shellfish Growers Association
(No address provided)
POSITION STATEMENT: Testified on behalf of the Alaska Shellfish
Growers Association.
JOHN AGOSTI, President
Alaska Shellfish Growers
(No address provided)
Seward, Alaska 99664
POSITION STATEMENT: Testified on behalf of the Alaska Shellfish
Growers.
RON LONG
Qutekcak Shellfish Hatchery
Seward, Alaska 99664
POSITION STATEMENT: Testified on behalf of the Qutekcak
Shellfish Hatchery.
ACTION NARRATIVE
TAPE 01-10, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the Joint Committee on Administrative
Regulation Review to order at 3:05 p.m. Representatives
McGuire, James, and Hayes were present at the call to order.
Senators Taylor and Lincoln arrived as the meeting was in
progress. Chair McGuire related her understanding that the
mariculture regulations would be sent to Department of Law by
approximately May 8, 2001.
NEW MARICULTURE REGULATIONS
Number 0121
DOUG MECUM, Director, Division of Commercial Fisheries (DCF),
Alaska Department of Fish & Game (ADF&G), referred to a handout
given to the committee, which included a chronological listing
of the events regarding the revision of the aquatic farm Act,
aquatic farming regulations, and a summary of the revisions to
the aquatic farming regulations that were implemented from
public workshops held over the past several months.
MR. MECUM explained that between 1996 and 1998 there had been a
moratorium on aquatic farm permit applications, caused by a
challenge to DNR's [Department of Natural Resources']
procedures. He indicated that there was a four-year period when
no applications were submitted, which created a considerable
backlog in applications. In 1999, when the application period
reopened, [DCF] received over 40 permit applications for aquatic
farming, many of which were for "on-bottom" farming, while
others were for littleneck clams or geoduck clams.
MR. MECUM noted that [DCF] believed these applications raised
some constitutional and operational issues. To address these
concerns, Mr. Mecum said [DCF] decided to meet with the aquatic
farm applicants to develop permit stipulations, so the permits
could be processed. Simultaneously, [DCF] responded to the
requests of the farmers by redrafting its regulations to address
some of these issues. Following the application period, [DCF]
issued 11 aquatic farming permits, most of the suspended culture
permits, and all of the littleneck clam farming permits outside
of Kachemak Bay, Mr. Mecum said, although he noted that the
latter was a "different issue." All but one of the geoduck
permit applications were approved; however, they were rejected
by the applicants because of their opposition to certain
conditions. Mr. Mecum explained that those applicants have
filed a judicial appeal of the conditions in those permits, and
that appeal is currently under litigation.
Number 0384
CHAIR McGUIRE asked Mr. Mecum if he could confirm for the record
whether [DCF] had asked the applicants to agree not to challenge
final versions of the regulations.
Number 0411
SHANNON O'FALLON, Assistant Attorney General, Natural Resources
Section, Civil Division (Juneau), Department of Law (DOL), asked
Chair McGuire to clarify if she was asking whether "we" require,
as part of the permit, that applicants not challenge draft
regulations.
CHAIR McGUIRE clarified that she did not want the response to be
narrowed to the point of not answering the fundamental part of
the question. She said she had been told one of the conditions
was that [the applicants] would agree to file [regulations] and
agree not to challenge regulations "at some point in that
process."
MS. O'FALLON answered that had not been part of it at any point.
MR. MECUM stated his recollection that one of the conditions
[the applicants] objected to was the condition that they must
continue to allow access to the common property resources on the
site. He added that there would be no problem if the applicant
had no common property resources on the site, and, in some
cases, the applicants stated on their applications that there
were none.
Number 0528
MR. MECUM continued, noting that in 2001, as part of its
regulatory project, [DCF] did the following: held public
hearings in Ketchikan, Juneau, and Anchorage on these
regulations; established a mariculture advisory panel, with
industry representatives and stakeholder groups; revised its
draft regulations based on public comments; released [the draft
regulations] for public review and comment on February 26 (the
second 30-day public comment period); requested that DNR extend
the application for aquatic farm sites; reconvened the panel in
March to attempt to resolve the remaining issues; held a second
public comment period, which closed on March 27; and completed a
third revision of the regulations, which were sent to DOL and
will become effective in early June.
Number 0602
REPRESENTATIVE JAMES asked if the final draft of those
regulations had been made public.
MR. MECUM said no.
REPRESENTATIVE JAMES commented, "So, we don't really know what
we're talking about today."
MR. MECUM replied that he could assure Representative James that
[DCF] had addressed approximately 95 percent of the concerns
that people have had. The remaining 5 percent of the concerns
deal with the disposition of the common property resources, and
he explained that those concerns would be more difficult to
address. He added DCF's belief that it would not be able to
resolve that 5 percent because of constitutional questions
raised.
Number 0683
SENATOR TAYLOR asked if the department would apply the new
regulations to applications that were made in 1999, before these
regulations were even contemplated.
MS. O'FALLON answered that all the applications that were
submitted in 1999 would have already been "adjudicated, for lack
of a better word"; therefore, the new regulations would not
apply to them.
Number 0739
SENATOR TAYLOR stated his understanding that, in ongoing
litigation, the department had maintained before the court that
there were unconstitutional provisions within the existing
statute. He asked if that was a fair statement.
MS. O'FALLON answered no. She clarified that her argument to
the court is that if the aquatic farm Act is read the way the
appellant read it, it would be unconstitutional. The aquatic
farm Act itself is not unconstitutional, she added.
Number 0809
MR. MECUM added that there are questions of interpretation on
this issue. He continued:
What we've tried to do with the (indisc.) additions
we've established is come up with things that we
believe comport with the aquatic farm Act and that
comport with the other provisions of state law and the
constitution. We've tried to do our best to implement
this in a constitutional manner.
SENATOR TAYLOR asked the witnesses to clarify whether the reason
the regulations would not pertain to those people who had
applied before was because those [applications] would be
adjudicated by the time the regulations took effect.
MS. O'FALLON's answer was twofold. First, she said one of the
arguments that the appellants are making in the litigation is
that policies were applied which weren't in regulation;
therefore, any of those policies applied would be invalid. She
explained "our" argument to the court: to the extent the court
believes that's true and that "we" should have adopted those
policies and regulations, the court could remand the
applications back to the department for review under the new
[policies and] regulations. Second, there is a new application
period coming up, and regulations need to be in place to govern
the next application process.
Number 0934
SENATOR TAYLOR asked Ms. O'Fallon to confirm that the department
told the court that if it should find for it, then the court
should remand the old applications back to the department, at
which point the old applications would have to comply with the
new regulations.
MS. O'FALLON responded that if the court were to remand the
applications back to the department, she would consider that a
ruling adverse to the state. She noted that DOL's position was
that if the decision made by the department were found to be
invalid, because it applied policies that weren't in regulation,
the remedy would not be to grant the appellant's permit, but
would be to remand the applications back to the department for
review, under the new regulations.
Number 1007
CHAIR McGUIRE said the concern of the committee was that the
department would be applying policies that were not based in
regulation, but that appear to be based upon an interpretation
of the statutes and then be playing "catch-up," rapidly getting
regulations into place, so that the regulations are in place by
the time the court ruling is made.
Number 1058
MR. MECUM said, from his perspective, the primary reason to have
the regulations and do the work is because the department did
publicly state its commitment to try to develop some policies
and regulations for aquatic farming and was criticized by the
legislature for not doing so in a timely manner. He added if
the department is playing "catch-up" at all, it is to catch up
to the commitment and responsibility to do this in the first
place.
Number 1107
CHAIR McGUIRE added, "It still doesn't make it wrong..., in my
opinion, that you didn't do it prior."
Number 1122
REPRESENTATIVE JAMES pointed to Mr. Mecum's Regulatory Review
Committee handout [available in committee packet] and read the
following line:
Moratorium on aquatic farm permits resulting from
legal challenge to DNR procedures.
She asked exactly what the status of that issue was and when the
aquatic farm legislation was passed. Representative James
explained that she wanted to get an understanding of the history
of this issue, since she had not been involved until now.
MR. MECUM responded that the legal challenge to DNR didn't have
anything to do with ADF&G and that he was not involved at that
time; however, he said he understood that it had something to do
with access in Peterson Bay and Kachemak Bay. He noted that
some of the fishing groups filed suit over the location of some
of the farms and over the issue of denied access, and then
questioned the public process and DNR's procedures in
establishing the location of the farms. Subsequently, DNR
changed its procedures, based on that lawsuit, then reopened the
application period, he said.
Number 1235
REPRESENTATIVE JAMES asked Mr. Mecum to clarify whether the
lawsuit was from other than farm applicants.
MR. MECUM replied that it was from commercial fishing groups.
He added his belief that the aquatic farm Act was passed in
1986.
Number 1306
SENATOR TAYLOR asked Mr. Mecum to clarify his previous statement
that regulations were not in place when the applications came
in, and were now pending in court.
MR. MECUM confirmed that was correct, stating that what
regulations were in place did not address the issue of "on-
bottom" clam farming.
SENATOR TAYLOR continued:
But we had passed a law that authorized it. You
didn't have any regulations in place, but you said you
had policies, because you've made an interpretation of
policy at some point in time, without any regulations,
which, apparently, you've now argued that as a policy
of the department, even before the court. Can you
tell me how myself or any other citizen in Alaska
would have been able to discern what your department's
policy was, say, six, eight months ago? It certainly
wasn't in writing; it wasn't in regulations any place.
How would I know what your policy was?
MR. MECUM answered, "You wouldn't." He explained that it was
the reason that the department set out the regulations for
public review, to seek a conclusion.
SENATOR TAYLOR said he understood that is what happened [as a
result of having no policy]. He stated his assumption that when
there was no policy, people would turn to members of the
department for assistance, and those members of the department
would work with them to find a solution.
MR. MECUM confirmed that was true.
SENATOR TAYLOR asked if Steve McGee and Bob Piorkowski still
worked for the department.
MR. MECUM said yes.
SENATOR TAYLOR told Mr. Mecum it was his understanding that the
chair had asked the department to have both of those employees
attend this meeting. He asked Mr. Mecum if he was aware of that
request.
MR. MECUM said he was not aware that the chair had requested
that. He explained that Mr. McGee and Mr. Piorkowski had come
to him the day before this meeting and expressed that they were
feeling uncomfortable about coming to the meeting without
knowing what they were being asked to address; Mr. Mecum said he
told those individuals that he had been asked to provide the
testimony on behalf of the department [and therefore] had told
Mr. McGee and Mr. Piorkowski not to appear at the meeting.
SENATOR TAYLOR told Mr. Mecum that that troubled him, because
the reason those people were asked to appear at the meeting is
that they are the people who worked with the applicants and who
supported, within the department, "on-bottom" farming. As
"offer of proof" to the committee, he said it was his
understanding that they were informed that they would have
testified that they encouraged the applicants, worked with them,
and interpreted the current policy of the department.
Consequently, those applicants have invested hundreds of
thousands of dollars, trying to get a permit from the
department. Senator Taylor submitted that the only reason those
individuals were not here today is because it would be very
embarrassing for the department to "have you give that
testimony."
SENATOR TAYLOR added that, if it were necessary, he would ask
the chair to recess, rather than to adjourn the committee
meeting, to allow sufficient time to secure subpoenas from the
Speaker of the House and through the Administrative Regulation
Review Committee, so that those individuals would be given an
opportunity to testify. He continued:
And this committee may be able to find out what your,
quote, "policy" was and what were you informing people
of six [to] nine months ago, until somebody over there
figured out, "Oh, my god, these guys might make a lot
of money off this; let's figure out how we can stop
it."
Number 1525
MR. MECUM responded that subpoenas were not necessary; if he had
known that the chair wanted those people to be at the meeting,
they would have been there. He reiterated that he had not been
contacted.
Number 1537
CHAIR McGUIRE told Mr. Mecum that her staff had conducted
several conversations with his department, all throughout the
previous day, in an attempt to secure testimony of those Mr.
McGee and Mr. Piorkowski, either through teleconference or in
person. She stated it was the committee's understanding that
those individuals came to Mr. Mecum and were advised that he
would be the sole department spokesperson.
MR. MECUM told the chair that this was a communication problem
and that it would not be a problem having those individuals
before the committee. In response to a question by the chair,
Mr. Mecum told the committee he had no objection to Chair
McGuire's [continuing the hearings] in an effort to elicit the
testimony of the above-named individuals.
CHAIR McGUIRE concluded that this had indeed been a
misunderstanding and that the committee should move on.
Number 1583
REPRESENTATIVE JAMES stated her understanding that aquatic farm
permits dealt with that which is under water, while mariculture
dealt with that which is not only under water, but also in the
soils of the water. She asked if that was correct.
MR. MECUM explained that the two kinds of aquatic farming are
"on-bottom" farming, which is in its infancy in Alaska, and
suspended culture. He said geoducks and littleneck clams are
naturally occurring wild stock that people in the state are
asking to farm. The suspended cultures, he explained, include
oysters and mussels. He said there are over 150 oyster farms in
Alaska. Mr. Mecum explained that it was not until more recently
that people have begun asking to start farming the wild stocks.
Number 1680
REPRESENTATIVE JAMES mentioned aquatic farming and said, "It
would lead me to believe that we're doing all those kinds of
things." She noted that perhaps "the suspended culture is what
you're talking about." She stated her belief that the State of
Alaska has a very good opportunity to pursue this type of
resource development. She noted that her position on the issue
was that these products are valuable and that it would benefit
[the state] to do whatever it could "to make this work."
Representative James said she understands that there are
parameters in which to work. She stated for the record that she
would be watching carefully and would like to see some of these
operations so she can speak about something with firsthand
knowledge. She asked Mr. Mecum to clarify that he was not
complaining about the suspended culture, only the on-bottom
farming.
MR. MECUM answered that the concerns regarding on-bottom clam
farming - the disposition of the wild stocks and the purpose of
use in transfers of ownership to private individuals - don't
exist with suspended culture. He said suspended-culture spat is
purchased and raised, and therefore is not a wild stock.
Number 1776
REPRESENTATIVE JAMES asked for clarification regarding methods
of seeding and growing.
MR. MECUM explained that some spat is purchased from a hatchery
in Seward, while the oyster spat is purchased elsewhere.
Littleneck clam spat can be purchased from the hatchery and the
seed stock can be raised, whereas he believes that the hatchery
has not yet been successful in raising geoducks. Mr. Mecum
noted the success of raising geoducks and producing spat in
hatcheries in the Lower 48 has been inconsistent and
intermittent.
REPRESENTATIVE JAMES asked Mr. Mecum about littleneck clams [in
the Lower 48].
MR. MECUM answered that [the Lower 48] seemed to be able to
raise them and produce the seed stock. In response to further
questioning from Representative James, Mr. Mecum said Alaska has
wild stocks and wouldn't want any importation from [the Lower
48] for native stocks. Oysters are allowed in from [the Lower
48] because they don't reproduce in Alaskan waters, so there is
no concern about genetic impact, he added.
Number 1857
REPRESENTATIVE JAMES mentioned the disappearance of "other fish"
from Alaskan waters. She said "we" came to the rescue, by
putting in hatcheries and raising "com" fish. She continued:
It seems to me ... that when we're talking about these
geoducks and these littleneck clams, ... that we have
a disappearance of those, as well, with the current
harvesting of these things. And so, it seems to me
... that there might be a way, at least if we're even
in a trial period, to find some real good evidence
that we could go in this direction for resource
development.
REPRESENTATIVE JAMES expressed her hope that everybody shared
her interest in [resource development].
Number 1909
MR. MECUM concurred with Representative James' statement. He
told the committee that the conditions placed on the geoduck
applicants would have allowed them to farm if they wanted to
purchase seed stock from the hatchery. Mr. Mecum continued:
The conditions that they objected to was our belief
that we couldn't transfer the ownership of the
existing stock to them for the purposes of financing
their operation. And that's the provision that we
don't believe exists.
Number 1947
CHAIR McGUIRE asked Mr. Mecum to walk the committee through what
the future of aquatic farming will be in Alaska under the
proposed regulations, including the following details: what
does the future look like; who are the people who can
participate; what do those people have to do to "get it going";
and what does the economic development look like for Alaska.
MR. MECUM responded that the suspended-culture operations would
not look much different than they do now, although he stated his
belief that the department has relaxed some of the requirements
for farmers. In the public-panel workshop that took place, Mr.
Mecum said, an agreement was made to change a five-year permit
to a ten-year permit, to coincide with DNR's ten-year lease. He
expressed his belief that that change would make it easier for
people to get financing and reduce the amount of paper work
necessary for the applicant. Mr. Mecum noted a change made to
the proposed regulations, which was the deletion of a
requirement to provide proof of financing.
CHAIR McGUIRE asked Mr. Mecum to clarify that he was talking
about suspended culture.
MR. MECUM said, "Well, this would actually apply to all of
them." He referred to his previous comment, repeating that he
did not see a lot of differences in terms of suspended culture.
CHAIR McGUIRE asked Mr. Mecum to make a distinction between
suspended culture and on-bottom farming, to clarify for the
committee how each of those areas is developing and what changes
have been made to the regulations.
Number 2066
MR. MECUM, in respect to the on-bottom farming, said the
department did issue permits during the last application,
including at least three permits issued for littleneck clam
farms. In response to a question from Chair McGuire, Mr. Mecum
said that [geoduck] permits were issued, but the applicants
rejected them as unfeasible; therefore, the department had to
deny their applications. He said those applications are now
under appeal. He stressed that the conditions to which the
applicants objected concerned wild stocks.
MR. MECUM noted that in the case of the littleneck clams, the
department was able to come up with a provision that essentially
allows removal of the existing standing stock by commercial
fishing, which isn't an "exclusive right of fishery." He said:
We have regulatory authority to issue permits for
people to harvest miscellaneous shellfish - littleneck
clams come under that. Permits are issued for people
to remove those clams, sell those clams, to get rid of
the existing standing stock. So, you don't run afoul
of this exclusive right of fishery.
CHAIR McGUIRE asked Mr. Mecum if, in his opinion, geoducks do
not fall under miscellaneous shellfish.
MR. MECUM explained that a geoduck fishery already exists and is
a limited-entry fishery, whereas there is no significant
commercial fishery on littleneck clams. Littleneck clams are
very widespread and (indisc.) and significant removals of them
on a three-or-four acre site don't pose any threat to the
sustained yield of the stocks in that area. He noted that
geoducks occur in very limited locations in very isolated beds.
Whereas littleneck clams are, say, five years when they mature
and may be eight or nine years old [at harvest], geoducks may be
upwards of a hundred years old. He added, "So, there's some
questions of sustainability if you're going to allow large-scale
removals like that."
CHAIR McGUIRE offered that there is a future in suspended
culture and, perhaps, in littleneck farming, but asked Mr. Mecum
if he anticipated that Alaska would ever have a future in
geoduck farming.
MR. MECUM explained that there are areas that "we" would never
anticipate going commercial fishing, because there are so few
geoducks. He told the committee that during the last round of
permit applications and based on the public input received, he
had proposed establishing a threshold density whereby below a
certain level would be designated for farming and above that
level would be designated for commercial fishing. Mr. Mecum
said the department was told it would be sued, however, because
"you couldn't tell one person that they could do it and another
that they couldn't."
CHAIR McGUIRE asked Mr. Mecum to explain how he planned to deal
with geoducks in the regulations, in a way that is meaningful
and allows for geoduck farming in Alaska.
MR. MECUM replied that it may be that the department needs the
legislature's help on this issue.
Number 2272
SENATOR TAYLOR, in an effort to clarify the issue at hand,
outlined points previously discussed, as follows: there was a
spoken policy within the department; people were encouraged by
the department to file applications and to "try and get off the
ground with these things"; and a set of regulations now exists,
but has not been seen yet. He then asked Mr. Mecum if it is
true that the department is currently permitting farmers for
littleneck clams to harvest and sell the natural stocks of clams
from those farms.
MR. MECUM said yes, under commercial fishing regulations.
SENATOR TAYLOR noted that according to the department's new
policy, clams that occur naturally at a farm site can only be
used for the limited purposes of brood stock and not for
commercial harvest. He asked Mr. Mecum, "How do they get around
that one?"
Number 2319
MR. MECUM offered the following example: An applicant would
come to the department with an area in mind that he/she wants to
farm. The department would then give the applicant a permit to
harvest and sell the clams, under commercial regulations.
Anyone who wanted to harvest those clams could do so.
SENATOR TAYLOR clarified that he was talking about a farm site.
MR. MECUM explained that there is no exclusive use for
harvesting; therefore, the farmer or anyone else could harvest
any particular site.
SENATOR TAYLOR asked Mr. Mecum if the department intended to
have two different management schemes for the same species: one
for the farmed product and one for the standing stock.
MR. MECUM said yes. In response to a follow-up question from
Senator Taylor, he said, although that system is complicated, it
is working. He noted that presently there are three such cases.
SENATOR TAYLOR postulated that there is one regimen for the
farmed product and one regimen for standing stocks. He asked,
"How do I know, when that clam comes to the surface, whether he
was a farmed clam or a happy little natural clam?"
MR. MECUM answered that it is difficult, but the department has
come up with conditions that deal with the issue. For example,
all the legal-size, marketable product is removed, leaving
behind the small, juvenile clams. Then, he said, through the
efforts of laying down predator netting, removing inhospitable
substrate, and thinning down the clams, the productivity of the
beds is increased. He defined farming for on-bottom species,
like littleneck clams, as "increasing the productivity, or
increasing the biomass, through some sort of enhancement effort,
as opposed to just going out and harvesting, which is just
commercial fishing."
SENATOR TAYLOR told Mr. Mecum that he was having difficulty
telling the difference, because, in commercial fishing, clams
that are harvested must meet a certain size requirement, or they
can't legally be taken. He said it is known, in the case of
littleneck clams, that those clams that fall back - as natural
clams, not farmed clams - enhance the stock because there are
fewer clams left to compete for food, so they grow bigger.
Senator Taylor pointed out what was really being talked about
was a natural stock that's being harvested, then harvested
again. He said the discussion was not about identifying and
separately managing a farmed species as opposed to a natural
stock, yet the regulations have been set up in two different
categories: farmed and natural stocks. Senator Taylor asked
Mr. Mecum if he could understand why the issue was confusing.
MR. MECUM concurred that this is a very difficult issue and that
the aquatic farm Act did not provide any guidance. He said the
department has been attempting to find a solution for several
years. He told the committee that the confusion could have been
avoided if, in the aquatic farm Act, the legislature had stated
that stock acquisition permits - which give the farmer the right
to harvest wild stocks - could be issued for purposes of blue
stock, (indisc.) propagation, and for financing the farmer's
operation. Mr. Mecum noted that the constitution states there
shall be no exclusive right of fishery. He said giving one
farmer, on one site, ownership of all these resources is most
exclusive.
SENATOR TAYLOR asked if a person could get a permit to get
littleneck clams from someone else's farm site.
MR. MECUM said yes.
Number 2562
REPRESENTATIVE JAMES asked Mr. Mecum to confirm that he had
stated that the aquatic farm [Act] had passed in 1986.
MR. MECUM concurred.
REPRESENTATIVE JAMES inquired whether, during the 15 years since
then, [the department] had ever suggested to the legislature
that changes needed to be made to the legislation.
MR. MECUM said, "Not yet."
REPRESENTATIVE JAMES told Mr. Mecum she was concerned about
that. She said the legislature is here to help, but can't help
if it doesn't know what needs to be done.
Number 2609
MR. MECUM said the first time the issue had been contemplated
was when an oyster farmer with a low income approached him and
asked if he could get a permit to harvest the clams that were on
his farm site, in order to make more money. Mr. Mecum indicated
he had given the man a commercial fishing permit, with the
caveat that this could be done, unless it got "out of control."
He explained that there is no way for him to limit access; if
anyone else approached him, he would have to give that person
the same opportunity. Mr. Mecum told the committee that was
exactly what happened: All the oyster farmers who had
littleneck clams on their site wanted a permit to harvest the
clams. Mr. Mecum said, "I'm probably the cause of all of this."
MR. MECUM said people eventually weren't satisfied with the
small operations and wanted to make hundreds of thousands of
dollars [farming clams]. People's efforts to expand have
resulted in sustained yield problems, problems with other users,
and public conflicts. He noted that the [aquatic farming] Act
itself is very vague and "wide open." The department has been
trying to implement this to the best of its ability, but it has
been a difficult task.
Number 2703
SENATOR TAYLOR asked if Mr. Mecum had sent anyone out to conduct
studies before granting the permit to that first oyster farmer
who had asked for the littleneck clam permit.
MR. MECUM said no.
SENATOR TAYLOR asked if the process was the same for the permits
that followed.
MR. MECUM said the department gave permits to about six farmers,
allowing for the harvesting of 100 pounds of clams per week, for
52 weeks.
SENATOR TAYLOR asked if the department had, during any part of
this process, gone out to conduct any surveys.
MR. MECUM said some surveying was done by the department. In
answer to a follow up questions by Senator Taylor, he
highlighted that the department had worked with a surveyor named
Rodger Painter.
SENATOR TAYLOR posited: "So, out of the six, you went and
looked at one." He stated his understanding that the objections
and concerns that Mr. Mecum had expressed, regarding harvesting
of native stocks, were based upon his concerns about
sustainability. He also expressed his understanding, from the
testimony given by Mr. Mecum, that the department has no idea
what the volume of littleneck clams is in Southeast Alaska,
Homer, or anywhere else, or where a person could go to find
geoducks. He asked Mr. Mecum if he could confirm that.
MR. MECUM replied that the department had actually done surveys
in many areas on geoducks. He said the department surveyed all
of the littleneck clam sites where the applications were made
during the recent round of applications. He emphasized the
abundance of littleneck clams by telling the committee that "a
house-sized lot ... has a tremendous number of littleneck clams
on it."
SENATOR TAYLOR asked the witness if he had limited the new
permittees to 5,200 pounds per year.
MR. MECUM answered, "On the farm sites, the way it works is we
remove all of the legal-size standing stock and then they get
into a farming operation."
SENATOR TAYLOR asked if removing the standing stock gave a
better picture of the volume in the area, and if the farmer was
then limited to taking no more or less than a certain percentage
of that volume.
MR. MECUM responded that once the farmers are in place,
sustained yield really isn't a question. He explained: "These
organisms that are there, that are their farmed product, are
theirs to sell and do with as they wish." He added there are
conditions that the department puts on farmers: They have to
return the lot back to its original condition, as part of the
program; when they leave, the balance must be restored.
SENATOR TAYLOR said the department has no idea what the biomass
is, until it is harvested by the farmer. He detailed this idea:
So, ... he could harvest just a little bit his first
year, establishing the background biomass. Then he's
now, quote, "farming," so he harvests a greater amount
- significantly greater - from there on out, all the
way through his operation. He gets done with the
operation and all he has to [do] is leave you with
ground that's got that amount that he chose to take
out the first time, because, you don't have divers
down there and you don't know what that biomass is.
SENATOR TAYLOR continued:
What I really think is kind of incredulous is that
we're attempting to draft regulations, based upon that
type of absentee ... management, where we sit in an
office and he turns in a report to us for how many
clams he took, and maybe once a year somebody goes out
and looks at the site. I mean, I have a hard time
understanding that, I really do, as a method or means
for which managements (indisc.) take place, especially
when you're looking at the same species on the same
ground, and part of it is background and original and
part of it is somehow farmed, and that somehow they
change character, but you're going to manage for those
two different species at the same time. I find that
very difficult to understand, or enforce.
Number 2930
But my main concern, I guess, with this whole process
is: We're looking at probably over 3,000 miles of
coastline, minimum, right here in Southeast Alaska,
and I know you've only surveyed a very, very small
portion of that mass. And to tell the committee that
we have large amounts of littleneck clams out there
and, gee, just one little area produces a whole bunch.
... And, unless I'm mistaken - I do want to give you a
chance to comment on this - I heard in your voice a
real concern that somebody might make hundreds of
thousands of dollars. Why in the world shouldn't we
have 5,000 of them out there making hundreds of
thousands of dollars a year, just on littlenecks now,
before we get to ... [tape ends midspeeck].
TAPE 01-10, SIDE B
Number 2970
MR. MECUM responded he did not know why Senator Taylor heard
reluctance in his voice. He told the committee he manages
fisheries statewide, where people make great amounts of money.
He said the department manages fish, not money; he couldn't care
less how much money the farmers make and hoped they made lots of
money.
SENATOR TAYLOR reminded Mr. Mecum of his previous testimony. In
it, Senator Taylor indicated that Mr. Mecum expressed a concern
that if the farmers began to harvest more than 5,200 pounds a
year, he would have to firm up the regulations. He told Mr.
Mecum that he did not mean to suggest this, but he had heard it
in his voice and it concerned him.
Number 2930
MR. MECUM responded that his intention had been to say that in
the department's efforts to help these people out, it created "a
little bit of a monster." He said the primary issue is
dissolution of the standing stocks. He told the committee that
nowhere in the law is it stated that people can go out and get
exclusive ownership of common-property resources for financing
their operations. He added, "If it did, I'd be the National
Bank Of Geoduck and I'd start writing checks today."
SENATOR TAYLOR inquired what the department would do if it lost
the suit; if the judge were to decide that the department was
not using the right policies, was inventing policies, and did
not write anything down, and that the people had complied with
the law and should be granted their permits.
Number 2864
MR. MECUM suggested there may be an appeal to consider.
However, if ultimately the court hands the decision down that
the issue has been contemplated by the legislature, that it is
not unconstitutional, and that the permits should be granted,
then that is what the department would do. He added that he
"wouldn't bat an eye."
SENATOR TAYLOR asked if Mr. Mecum would then go back and
restructure the regulations to provide the same opportunity for
other people.
MR. MECUM said Senator Taylor was delving too far into "the
realm of the hypothetical" at this point, and that he would
prefer to not answer that question.
Number 2835
CHAIR McGUIRE stated that many members of the committee were
concerned about rushing through regulations now, when the
department has not done so since 1986. She described the
current push as getting something on the books that justifies
policies that were being applied on a questionable basis. Chair
McGuire stated her belief that there may be a logical reason for
a judge to decide that the department is wrong and, therefore,
grant the permits. There is a possibility that the department
may find itself with a set of regulations on the books which are
inconsistent not only with the original statute, but also with
the judge's finding. She suggested that the department wait to
see what the judge has to say, [then] let the legislature go
back to the table and send a clear directive on the issue, and
then put a set of comprehensive regulations into place.
Number 2780
MS. O'FALLON said there is another round of applications that
the department will have to act on. She added, "The rush is not
the litigation; the rush is to get regulations in place." She
said that if the Alaska Supreme Court agrees with the
appellant's interpretation of the "aquatic farm Act" then the
regulations will have to be changed.
Number 2731
SENATOR LINCOLN asked Mr. Mecum if, after hearing the concerns
and questions raised, he could come back before the committee
and make a different set of recommendations that would satisfy
both parties.
MR. MECUM answered that the regulations the department was
prepared to file with the lieutenant governor were "a very good
product." He said that two industry stakeholder panel groups
participated in "negotiated rule-making" in drafting them. He
said the department addressed all of the concerns with the
regulations from a practical perspective. Mr. Mecum said he had
"forced [his] staff to spend days, considerable amounts of time,
to get these things done." Mr. Mecum expressed his pride in the
process he and his staff went through. He said some people will
not be happy with some of the provisions but added, "That's
life." He said his department has done everything it possibly
could, "bending over backwards" to try to come up with a good
product, and he thinks it has achieved its goal.
MR. MECUM said he does not know what he would have done
differently. He said that at some point the department will be
working with the legislature. Mr. Mecum stated that Senator
Torgerson introduced a bill that addressed some of the issues in
question and that over the interim, the Senator wanted to
continue working on the bill. He said some improvements could
be made, but he did not see what could be done differently in
relation to the regulations.
Number 2602
REPRESENTATIVE JAMES stated her sympathy for Mr. Mecum's
position on the issue, but added that the committee and others,
were at a disadvantage because he knew what was in the
regulations "and we don't." Representative James said it was
hard to know if the committee would be satisfied with the
changes until they have a chance to look at them. She asked if
the regulations, as drafted, provide opportunity for littleneck
clam and geoduck farming.
MR. MECUM answered that they did.
Number 2552
SENATOR TAYLOR asked if, as a requirement of the regulations,
the proposed farm would be located in an area that has been
surveyed by the department and "excluded as an area that could
support a commercial fishery," why anyone would want to farm
geoducks where they do not occur naturally.
MR. MECUM said that the majority of geoduck farm permit
applications submitted during the last round would meet the
criteria outlined in 5 AAC 41.240. He said that in the public
hearings he had referenced, many people stated a lack of need
for "standing stocks" of geoducks. Mr. Mecum pointed out that
there was a need for "suitable substrate." He pointed to an
example of experimental geoduck farming in British Columbia and
Washington, where the most successful yields come from areas
without large amounts of wild geoducks.
SENATOR TAYLOR said that the regulations would set up a pattern
by which all of the commercially viable geoduck areas in the
state will be excluded from farming and left to other commercial
users.
MR. MECUM disagreed.
Number 2382
STEVEN LaCROIX said he "made geoduck applications in Southeast
Alaska" and that he was "involved in an appeal of the
department's - what [he] considered - denial." He said that he
and his co-plaintiffs refuse to accept the permits that the
department issued because of two reasons. The first was that
they would be "forced to accept these regulations that were
coming down the road." He said he thought it better to obtain
permits based on current law. He said his second complaint was
that he and his co-plaintiffs do not feel that they can farm
under two management systems.
MR. LaCROIX said he agreed with Mr. Mecum on most points and
that the department has done a thorough job of trying to address
problems. Mr. LaCroix said, "We went into these applications
thinking, and were advised by the department, that we could do
what we proposed to do."
MR. LaCROIX said that the regulations will make it hard to get a
good farm site because there will be two different management
structures: a commercial fisheries structure for the standing
stock, and a farming structure for what is planted. Mr. LaCroix
said that the requirement to distinguish between farmed and wild
stocks will be impossible to satisfy. He said that he and his
group made six applications and that to his knowledge, none of
them were in places where there was a commercial fishing
interest. He said that he tried to do it right and that he
deserved a permit.
Number 2208
CHAIR McGUIRE asked Mr. LaCroix to clarify what type of on-
bottom farming he was looking at doing and how far along he was
in it. She also asked where he would be left if the proposed
regulations were filed.
MR. LaCROIX said that what he had applied for was "the five acre
lease." He then claimed that he wanted to plant one acre of
clams per year at each five acre site. He estimated it will
take five years for these clams to grow. He said that would
allow an ongoing supply of geoducks "by planting and harvesting
rotationally, one acre of ground at each site." He said his
estimates were that the farms could produce 100,000 pounds of
geoducks per acre. He was not sure how long it would be before
this figure would be realized.
MR. LaCROIX agreed with Mr. Mecum and his statement that some
people intentionally applied for areas without wild geoducks
because they were considered a "liability." He raised the issue
of wild geoducks not passing tests for Paralytic Shellfish
Poisoning (PSP). Mr. LaCroix said that "there's a lot of
gambling that we're taking," and that if he is forced to make
all applications in areas that don't have standing stocks, that
risk is beyond what he can afford to take.
MR. LaCROIX said that there must be some indication that clams
might be able to grow in the ground that has been applied for.
Mr. LaCroix indicated that clean sand and good substrate are
needed to grow valuable geoducks. He defined a valuable geoduck
as one with white flesh and said that is the result of sandy
substrate and plenty of food and current. He indicated that [a
requirement to farm around the standing stock would mean that
the best ground of these sites would be out of bounds. Mr.
LaCroix said he did not think the solution was to try to "farm
around the individual animals." He said the solution would be
found at the "site selection level."
Number 1935
SENATOR TAYLOR asked what the average length of time required
for a geoduck to mature to marketable size is.
MR. LaCROIX said it depends on the area. He said the best area,
in "South Sound," Washington, produced two pound geoducks in
three and a half years. He said that geoducks larger than two
pounds are of lesser value, and he indicated larger geoducks as
one of the problems with standing stock.
SENATOR TAYLOR said that he was concerned about not having
enough information on the life cycle of shellfish. He spoke of
the decline in the abalone and rock cod fisheries. He
attributed this to a poor understanding of the time it takes for
these species to mature. He called for "firm science" on the
time it takes for a geoduck to mature. He asked Mr. LaCroix if
he knew Steve McGee and Bob Piorkowski.
MR. LaCROIX said he met Steve McGee during an application
process with the Alaska Coastal Management Program. He said he
met Robert Piorkowski and various others when he was in
Ketchikan, promoting aquatic farming. In response to one of
Senator Taylor's questions, Mr. LaCroix said Mr. Piorkowski
encouraged him to begin aquatic farming.
CHAIR McGUIRE asked Mr. LaCroix what would happen to his geoduck
farm if the regulations were to go into affect on May 8.
Number 1725
MR. LaCROIX answered that that he would only be affected if the
regulations apply to him. He surmised that he would be able to
obtain a permit and seed. He said he had a problem with the
proposed regulations and how he would have to farm around the
standing stocks because of them. He said he could not meet the
requirement to identify and protect the standing stock. Mr.
LaCroix said he would have to take the standing stock "out of an
acre this year [and] plant it, and [he] would propose that the
department doesn't allow [him] to do that to the second acre
until [he] demonstrated that he planted the first acre." He
said that it would be a good policy for the department to make
sure that farmers are doing what they say they are going to.
SENATOR LINCOLN asked if it was an "insurmountable" problem to
work things out with the department.
MR. LaCROIX answered that he did not think so.
SENATOR LINCOLN asked how Bob Piorkowski encouraged him to get
into the business.
MR. LaCROIX said that he had been shown videos of the hatchery
that was built in Seward, and that his impression was that it
was a "sales pitch" for the new hatchery. He said there was a
major presentation on how to identify littleneck clam sites.
Mr. LaCroix said that he had been harvesting geoduck clams and
"just substituted geoducks for littleneck clams" in his
applications. In response to a question from Senator Lincoln,
he said that he was proposing to farm geoducks.
SENATOR LINCOLN asked how Mr. Piorkowski's presentation
encouraged him to farm geoducks.
MR. LaCROIX answered that the key factor that encouraged him was
the advent of a hatchery that could produce geoduck seed. He
said without a hatchery there is no reason to farm geoducks.
SENATOR LINCOLN asked if there was a discussion of negative
impacts at the presentation.
MR. LaCROIX told the committee that he was given books by those
at the presentation that said the negative impact would be "if
you didn't get enough clams." He added that they were not
talking about geoducks but rather a "different species of
clams."
Number 1482
SCOTT THOMAS, Managing Member, Alaska Trademark Shellfish, a
newly formed, limited liability company (LLC) based in Ketchikan
with six partners, testified that he is developing commercial-
scale aquatic farming. He said his company has been in the
process for two and a half years. He said there has been a lack
of communication between the department and his company on the
issue of geoducks.
MR. THOMAS said in 1999, his company relied on the department's
existing policies. He said that the department's policy was "if
you passed all these hurdles" and there were no conflicts, the
standing stocks on a proposed site became the applicant's
property. He said since 1999 the department has changed that
policy. Mr. Thomas quoted Frank Rue as saying that "the
department believes that standing stocks of the permitted
species pass to the permittee as property of the permittee." He
said that his company relied on Mr. Rue's statement to develop
its business plan. He said that like Steve LaCroix, he was
encouraged by department workshops put on by Bob Piorkowski, to
secure areas with large standing stocks and thin them out if
need be.
Number 1364
MR. THOMAS said the department "got scared" when applicants
intentionally selected sites with standing stocks. He claimed
that he would not encourage anyone to select an area where the
particular specie of shellfish to be farmed did not exist
naturally. He said he relied heavily on the policy that he
understood the department to hold on standing stocks. He said
he'd sold his commercial seining business in order start
shellfish farming, and he is "just about bankrupt." Mr. Thomas
said that the changing policies are "discriminately applied."
He claimed that under Alaska Department of Fish and Game
management, he was getting $1.10 per pound for geoducks and
those farming littleneck clams were receiving $3.00 per pound.
Number 1212
MR. THOMAS showed the committee images relating to the process
of shellfish farming. He said geoduck farming is "exciting and
it works." He said one-tenth of the resource can produce a
hundred times the results due to the technology. He said that
if the regulations are passed, "there is no new on-bottom
aquaculture in the state of Alaska." He said that if someone
farms in areas where the crop does not exist naturally, as the
regulations require, that person would not stand a good chance
of success. He said that he would never have taken the risk of
starting up in the business if he had known the department would
change its policies. Mr. Thomas said that there is no reason to
change the policies.
MR. THOMAS referred to a chart of Southeast Alaska and said
there are 10,000 miles of coastline. He said that "our clean,
fresh water" is a huge resource and one of the greatest untapped
natural resources in the state. He said Alaskan shellfish are
of premium quality and could lead to a strong industry for the
state. He showed the committee the location of his farm by Long
Island. Mr. Thomas said he chose his site 45 miles away from
the nearest conflicting use. On the map he showed a comparison
of the size of his operation in relation to the rest of the
harvest areas in Southeast Alaska. He showed the committee the
areas that were open to geoduck harvest, and he listed areas by
Biorka Island, Goddard Hot Springs, the Craig area, Noyes
Island, the Gravina area, and Kah Shakes.
SENATOR LINCOLN asked Mr. Mecum if he agreed with the areas
indicated by Mr. Thomas.
MR. THOMAS said that generally, he did.
Number 0773
MR. THOMAS said the department has claimed that they are trying
to work with geoduck farmers and alleviate conflict; in the year
prior, however, it opened a commercial dive fishery for geoducks
next to his farm. He said that there is 50 miles in either
direction from his farm to develop a commercial fishery, but the
department has chosen to locate one right next to his operation.
Mr. Thomas said there is a provision in the state constitution
for aquatic farming. Mr. Thomas added, "Bottom line, if these
regulations are put in place, I think it puts an end to the
industry." In response to Senator Lincoln, Mr. Thomas said that
it would be decided in his lawsuit, but he didn't think the
regulations would apply to his company.
Number 0544
SENATOR LINCOLN asked if Mr. Thomas had an attorney throughout
the life of his business.
MR. THOMAS replied that two and a half years before, his
business hired Bruce Weyhrauch to research and review statutes
to make sure [the business] could utilize the standing stock.
He said the department does have legitimate concerns about
people coming to utilize a resource and "taking it and running."
Mr. Thomas said his company was against this type of activity
and that his company agreed to post a restoration bond with the
Department of Natural Resources (DNR). He said his company
agreed to post a performance bond whereby they would be required
to plant an acre to receive the next acre. He said they agreed
to pay for an on-board observer to ensure compliance. He said
the department refused all of his company's offers. In response
to Senator Lincoln's question, Mr. Thomas said his market was in
Hong Kong. He said he believed that his company could market
purple-edged rock scallops and oysters domestically. He said
China is doing a great deal of aquatic farming and said that it
is the fastest-growing food-producing market in the world,
growing by 9.6 percent since 1984. He claimed that Alaska could
be part of that market and clarified that he meant "only
shellfish and sea plants."
SENATOR LINCOLN asked how large of an area Mr. Thomas was
referring to on the map he provided.
MR. THOMAS said the total area his company had applied for was
33 acres; he added that it would be the largest aquatic farm in
Southeast Alaska. Responding to Senator Lincoln, he said it was
right on the shore, just outside of the intertidal zone. Mr.
Thomas said that one of the reasons for the selection of the
areas was to offset development costs by utilizing standing
stocks. Another reason for the site's selection was the warm
water of the Japanese Current, according to Mr. Thomas. He said
the nutrients brought by it, hopefully, would give his farm an
advantage. He conveyed the difficulty of getting a "live
product" from the bottom, onto a plane, and into Hong Kong, as
well as the difficulties brought by PSP.
Number 0100
BRUCE WEYHRAUCH, Attorney, Law Office of Bruce B. Weyhrauch,
LLC, testified that he was representing the appellants in ATS &
Zaugg et al. v. State et al. He said that when Mr. Thomas hired
him he started working with Mr. Mecum and the Department of Law,
attempting to reach an out-of-court resolution. He said he had
been working on the case since 1999.
TAPE 01-11, SIDE A
Number 0072
MR. WEYHRAUCH said, having worked with the department on
commercial fisheries, he had never seen it act so aggressively
to stop an industry. He cited AS 16.40.105 and said it outlined
four specific criteria, drafted by the legislature, concerning
issuance of aquatic permits. He said the statute allows the
standing stock to pass to the aquatic farmer for sale. He said
there are e-mails from the Department of Law saying that it has
reviewed the statute and agrees farmers are entitled to sell
standing stock.
MR. WEYHRAUCH said that the suit was an attempt to work with the
state on an ordered, natural resource development project that
the state has a legitimate interest in as a public resource.
Mr. Weyhrauch said, with that as a background, that it is
critical that aquatic farmers recognize the state's interest and
allow the state absolute access to their farms and business
plans, so they can prevent the "'rape, ruin, and run' kind of
attitude" previously mentioned. He noted that every time a set
of conditions was proposed, "someone stopped it from happening."
Number 0244
MR. WEYHRAUCH said he thinks that there is a way to "work this
with industry and the parties" and "that it should be worked so
that industry can go forward." He said that rather than take it
to court, the state should attempt to work things out with the
industry. Perhaps a joint resolution would be a good solution,
said Mr. Weyhrauch.
REPRESENTATIVE HAYES wondered if the parties were too far along
in the process, and if a lawsuit decision was required to "set
some sort of precedent."
MR. WEYHRAUCH answered that the state and appellants would have
to agree on a request to stay any decision, pending some sort of
resolution. He said he thinks the appellants want some sort of
decision, "adverse or not," to get a sense of certainty in their
business affairs.
REPRESENTATIVE HAYES said his question was if it would be
prudent public policy to let this continue on, or if it would be
prudent to end it.
Number 0460
MR. WEYHRAUCH responded that the state and industry must have a
set of criteria that they can live with, and at this point they
don't. Until they have a set of criteria, both the state and
the farm industry will not be able to reach a stay.
Number 0553
CHAIR McGUIRE asked Mr. Weyhrauch if he had gone back to look at
the legislative intent in hearings surrounding the aquatic
farming Act, and if it was his impression that the Act was
passed because of a desire to see aquatic farming in the state.
MR. WEYHRAUCH said that it was. He qualified his statement by
adding that there was a definite public policy against finfish
farming, and no aquatic farmer he knows, or would work for,
favors finfish farming. But he said that there was a set of
regulations in place before the aquatic farm Act was adopted
which tells of the legislature's intent as part of AS 16.40.105.
Most of the debate centered on fin-fish farming and its
prohibition, and he could not find the word "geoducks" in the
legislative history.
Number 0636
SENATOR TAYLOR said he found it incredible that the department
has argued that the policy under which Mr. Weyhrauch's clients
applied was an unconstitutional interpretation. He pointed out
that the law can be made constitutional by passing another set
of regulations.
MR. WEYHRAUCH said the state believes that the interpretation
which the appellants have on how stocks should be handled is
unconstitutional because it violates the exclusive-use clause of
the constitution. He said he disagrees with the state's
interpretation because the state has already approved his
clients' actions as a viable form of aquaculture allowed under
the constitution. He added that when the Department of Law did
the review of the Act, there were no legal issues, only policy
ones; that is in the record.
Number 0781
SENATOR TAYLOR said he was having a hard time understanding how
the state could be saying a law is unconstitutional on one hand,
while using the same law to justify the implementation of other
regulations. He said if what the department led the applicants
to believe was based on an unconstitutional law, "we have a
totally contradictory philosophy coming out of the same
department in about a two-year period."
MR. WEYHRAUCH said the problem with aquatic farming is that its
policies and conditions have changed over time; arguments change
the policies yet again. Mr. Weyhrauch claimed that people must
be ever vigilant of the department for its next set of new
standards, and added that this makes business decisions
impossible. Answering Senator Taylor's question, Mr. Weyhrauch
said in order to know the department's policies prior to
drafting of regulations, "bits and pieces dribbled out" as a
draft proposal.
Number 0923
REPRESENTATIVE McGUIRE asked for Mr. Weyhrauch's opinion on what
the committee and legislature should be doing on the issue.
MR. WEYHRAUCH answered that the legislature must make a strong
statement that the law it passed in the 1980s is the law that
should apply to the department now. The department should be
held to the interpretation of the statute. He said that
statements made to the public had changed. Mr. Weyhrauch said
he feels if the legislature adopts regulations that make it
impossible for an aquatic farmer to exist, or that change the
rules, it will be bad. He put forth his belief that the
legislature should make sure that the regulations "pass muster"
with the aquatic farm industry in "a more unanimous way than
they do now."
Number 1024
SENATOR LINCOLN stated she was "a little nervous" about
litigation. She said if the legislature steps in and makes a
strong statement about the interpretation of legislation, it
will be "stepping into the courtroom." She said she was not
sure that the Department of Law would make the same
interpretations as the legislature. Senator Lincoln said that
she would like to see the issue resolved in a manner that is
beneficial to both parties, but she did not want the legislature
to "interject" in an ongoing case.
Number 1108
MR. WEYHRAUCH claimed that the legislature would never be named
in his lawsuit. The legislature is the policy arm of the
government; that the court is bound to interpret what it does,
consistent with the constitution. Mr. Weyhrauch said, "If the
legislature finds a majority will to step in and clarify
something, that what the court is going to do with that policy
statement, just as it would do with these regulations, and
determine whether the policy statement now can be applied to the
issues in front of the court." He said he could not foresee how
the legislature's Acts might work in court.
REPRESENTATIVE HAYES asked Mr. Mecum how much consensus the
department had for the new regulations.
Number 1222
MR. MECUM replied that he could not put a number to it, but said
that 160 changes were made to the regulations. He said the
changes addressed 95 percent of the problems people had with the
new regulations. Mr. Mecum said the regulations covered a great
variety of issues beyond just the issue of "who gets the
geoducks."
REPRESENTATIVE McGUIRE made the point that "just saying that the
regulations were changed 160 times doesn't give [the committee]
any indication about whether they're good regulations or not."
MR. MECUM clarified that the changes were made to accommodate
the industry. He said that 95 percent of the changes people
wanted were made.
SENATOR TAYLOR stated that there is no industry or aquatic
farmer constituency base. He said there are only a small number
of littleneck clams, while there are quite a few people doing
suspended aquaculture with oysters and mussels, practically no
one doing on-bottom aquaculture, and a competing group. He said
that those in the dive fisheries are concerned about their
access to resources. Senator Taylor pointed out that the
legislature and the department had done nothing on the issue.
SENATOR TAYLOR said the first geoduck surveys were done by the
department, by request of himself and Representative John Sund
in 1986. He conveyed that the money for the survey was given by
Silver Lining Seafoods to the department to gain information on
an area near Ketchikan. Senator Taylor said that the survey
made way for the first dive fishery on geoducks and that the
area in question was exploited until it was depleted. He said
that people must pay money to have the department survey any new
area. He claimed that it is the "exclusive decision of the
department where even to look" for new geoduck areas.
SENATOR TAYLOR suggested that it would be nice if the department
were to go out and survey 2000 acres or 200 acres in an ongoing
program, to gain a good understanding of the organisms and their
environment.
Number 1602
ROBERT HARTLEY, Shellfish Farmer, testified via teleconference.
He thanked the committee for addressing concerns with the
process the department used in developing aquatic farming
regulations. He thanked the committee for hearing objections to
the development of regulations banning clam farming in Kachemak
Bay, and added that he felt those regulations were based on
"faulty science." He thanked the committee for hearing his
request for equity, where "the Department of Fish and Game did
not."
MR. HARTLEY said that on the matter of the proposed regulations,
a lot of progress had been made as far as making the regulations
workable, but added that there was a lot of work to do on the
issue of standing stocks. He claimed that it affects both on-
bottom farmers and suspended aquaculture farmers.
Number 1723
MELANIE DOUGLAS (ph), Aquatic Farmer, who testified via
teleconference, echoed Mr. Hartley's comments that the
committee's intervention "got things underway in a reasonable
fashion." She said her main concern was that there be a final
draft of the regulations remitted to the Department of Law. She
said she was concerned about what the "5 percent" entailed. Ms.
Douglas said that the standing-stock issue was significant to
her as a mussel farmer.
JULIE DECKER, Executive Director, Southeast Alaska Regional Dive
Fisheries Association (SARDFA), testified via teleconference
that she empathized with the frustrations she heard from
committee members. She said the farmers are not the only ones
to have spent time and resources on this issue. Ms. Decker said
SARDFA has been involved since 1999, when geoduck farmers
applied for sites, saying they contained marginal wild stocks or
no stocks, but that were later found with a large number of
[wild] geoducks on their sites.
MS. DECKER said that SARDFA is interested in commercially viable
stocks in Southeast. She said it seemed to her that it is
possible for geoduck farmers and dive fishers to coexist
peacefully. She claimed the problem with the aquatic farm Act
is that it is not specific about species.
MS. DECKER said from what she had heard from divers, geoducks do
not grow all over Southeast Alaska, but rather they grow in
pockets. She claimed that there is more area with substrate
that is accommodating to geoducks than actual areas of geoduck
occurrence. Ms. Decker added that in British Columbia and
Washington State, geoducks are being farmed intertidally, a
manner that is not naturally occurring. Ms. Decker drew the
conclusion that the only two areas outside of Alaska where
geoducks are being farmed in places that do not have standing
stock.
MS. DECKER said lack of funding was holding back the dive
fisheries in Alaska. She said her organization has lobbied the
legislature for funding for the mariculture industry.
Number 2063
RODGER PAINTER, Alaska Shellfish Growers Association, testified
via teleconference that he was happy with the committee's
"highlighting the situation with the regulations." Mr. Painter
said the industry is convinced that the process it had with the
department is a result of the attention the legislature paid to
the issue.
MR. PAINTER thanked the department and the efforts of Doug Mecum
to try reaching a resolution to the regulation problems. He
said he is hopeful that the regulations will come through in
such a manner that he and his industry "can live with them." He
pointed out that he was unsure how the department would
interpret and carry out the new regulations. He added that he
did not know what the outcome of the lawsuit would be. Mr.
Painter said he hoped that the committee would work on the issue
over the interim.
SENATOR TAYLOR directed a question to the department. He asked
if prior to submitting for final signature, the department could
submit the new regulations to the committee over the interim for
one last public process.
MS. O'FALLON answered that the draft regulations from the
department are available to the public to look at. She said
that the final proposed regulations that are to be submitted to
the lieutenant governor's office were still being reviewed by
the Department of Law. Ms. O'Fallon said if the department were
to send those regulations out for public comment again, there
would be no regulations in place to deal with the next round of
applications.
SENATOR TAYLOR gave an example of how he had helped to work out
some other contentious committee issue. He asked if "before the
final hammer drops" and there is another lawsuit, perhaps the
department could give the committee some "breathing room."
Number 2429
MS. O'FALLON answered that the Department of Law's advice to the
Alaska Department of Fish and Game was, "You're going to get
yourself in just as much trouble without having [regulations],
with this next application period, even though there are some
unresolved questions of law." She said she felt as much risk of
getting sued if the department does not submit the regulations.
SENATOR TAYLOR said that he understood the risk but added that
"we went 15 years without [regulations]." He said that the
"confrontational wall" was not hit until about a year prior. He
said that a little delay would not be too much to ask. He also
asked if the committee could have a copy of the actual
regulations that have been approved by the Department of Law
before they are submitted to the lieutenant governor.
MS. O'FALLON said she believes the new regulations are part of
the public record.
SENATOR TAYLOR voiced his concern that the regulations will be
signed when the legislature is out of session.
Number 2648
MR. MECUM said people came to him saying that the application
process should not be opened up because of all the problems. He
said that he disagreed because of his belief that not opening it
up would be bad public policy. He said that one can delay
forever but people have the right to submit applications for
permits. He said that the Department of Law's advice to him on
the issue of implementing regulations was, "Suck it up and get
going." He expressed his appreciation of the committee's work
on the issue, but he added that he committed to a public process
and panel before the committee began addressing the issue. Mr.
Mecum said he and the department have really tried to gather
public input and incorporate it into the regulations.
MR. MECUM brought up the "moving target" issue. He said
"bureaucrats making up stuff as they go along is not the way for
an industry to get developed." He claimed his department
"decided to take the bull by the horns" to develop "rules of the
road."
Number 2758
REPRESENTATIVE HAYES asked if all those involved in the suit had
an opportunity to see the changes to the most current
regulations. He said that the uncertainty did not make the
committee comfortable.
MR. MECUM said the first version of the regulations did not
please many people, including himself. He claimed that the
second version saw more acceptance, but there were still points
of contention. He described how a third revision was steered by
a third public panel meeting. Mr. Mecum said that he "made
commitments" at these public panel meetings. He called for
people's trust in the commitments he and his department made.
He said that he did not know of another option.
SENATOR TAYLOR told Mr. Mecum that there is another option:
"show us what you did." Senator Taylor asked if the new
regulations would be made available to the public before their
being finalized. He asked what the problem was with letting all
of those farmers who had testified see the new regulations.
Number 2887
MR. MECUM said that letting people see finished regulations "is
not a problem." He said that a further delay in implementing
the regulations was "a bridge we have already crossed." He said
"if we were going to delay, we should not have had this
application period." In response to a question from Senator
Taylor, Mr. Mecum said that the application period started on
the first of January. He mentioned that the Department of
Natural Resources responded "somewhat grudging" when asked for
an extension of the application deadline. He said the whole
process was "shifting" and that it was "incredibly
bureaucratic." He said the department's request had been
"shifted back a couple months already," and stated his concern
about what an additional delay would do to the entire process.
Mr. Mecum said the regulations are changeable and if something
is wrong with them, they will be changed.
TAPE 01-11, SIDE B
Number 2954
SENATOR TAYLOR said there will be a better idea about things
when the court decision is made, as well as when the final
regulations are released. He called for at least a brief period
of reflection on "where we're going from here." He said that
the department's claim to appeal the case if it loses is
frustrating.
MR. MECUM said, "We are at the end of the line for this
particular process." He said the new regulations would be made
available to the public upon the completion of the Department of
Law's review. He claimed he will change the regulations again
to accommodate legitimate concerns. Mr. Mecum described the
court case as a very unfortunate circumstance.
Number 2918
MR. MECUM made reference to SB 141 and said Senator Torgerson
had the idea of a "lease-track system" to get around difficult
issues. Mr. Mecum said that in a meeting with Senator Torgerson
and a legislative attorney, the attorney said the bill "was not
going to cut it." According to Mr. Mecum, the attorney told him
that transferring "these resources to these individuals" would
require a constitutional amendment. He said he had to follow
his attorney's advice.
Number 2859
SENATOR LINCOLN asked what the period of time between the final
regulations' approval by the Department of Law and the time the
lieutenant governor gets them on her desk would be.
MS. O'FALLON said draft regulations are adopted by the
department; they are then sent to Department of Law and are
reviewed. Small changes are made and the regulations usually
make it to the lieutenant governor's desk within the same day.
Number 2780
SENATOR LINCOLN said she inferred that when the public gets a
copy of the final version, the regulations are ready to be
signed into law and that they are signed very quickly
thereafter. She said that she did not want to give those who
had testified against the regulations false hope. She said she
did not see the legislature as having the ability to make
changes to the regulations at that point. Senator Lincoln
reminded Ms. O'Fallon of her claim that she did not see the
regulations in need of any change. She wanted it made clear to
those with concerns about the regulations that it would not be
easy to get the department to recognize a "legitimate concern,"
if it were satisfied with the version it was submitting for
passage.
Number 2690
MR. MECUM agreed with Senator Lincoln that it was not an easy
process to change regulations, and that he did not want people
to assume that changes would be made overnight. He said that
"we're not always right," and that there are farmers with
legitimate concerns. He said the public panels and meetings
have addressed all of the contentious issues except those of
standing stocks' transfer of ownership.
SENATOR LINCOLN asked if the issue of standing stocks was not a
"legitimate concern" that would warrant a closer look before the
regulations are signed.
MR. MECUM said that the department felt the transfer-of-
standing-stock issue had been taken care of, and that "it passes
muster with the constitution."
SENATOR LINCOLN then asked how the department had taken care of
the problem.
MR. MECUM answered that in the case of clam farmers, the
department said: "If you want to have this site, you can have
it. If you want to plant seed and harvest that seed, you can do
that. If you want to get wild stock, the only way you can do it
is get a stock-acquisition permit." He clarified that a stock-
acquisition permit is for "bringing about culture and
propagation, and not for, in essence, doing your cost recovery
of your facility upfront." Mr. Mecum said that in the case of a
farmer with no standing stocks, there is no problem, but for a
farmer with "lots and lots and lots," it is going to be more
difficult. He said that there would have to be some way to
differentiate between farmed and wild stocks. Mr. Mecum stated
that all of these points have been reviewed and approved by the
Department of Law.
Number 2566
SENATOR LINCOLN made the statement that those with complaints
would still look at all of the department's provisions and
considerations of their problems, and once again not be
satisfied. She asked Mr. Mecum if the department's response to
these people would be: "That's not a legitimate concern. We've
taken care of that. I'll see you in court."
MR. MECUM responded that "this is our interpretation and yes,
court is one route, coming back to the legislature...." Those
kinds of issues can't be dealt with by regulation by the
department, he said.
CHAIR McGUIRE countered, "Yet at the same time, you fully
admitted you treat littleneck clams in an entirely different
manner."
MR. MECUM responded by saying that littleneck clam farms must
get a stock-acquisition permit for the "cultivated product." He
said that the only way for them to get exclusive ownership is if
it is the stock that they have grown.
SENATOR TAYLOR asked how Mr. Painter's selling of littleneck
clams that he has not grown is not "treating one clam guy a heck
of a lot different than you're treating the other clam guy."
Number 2474
MR. MECUM said there are longstanding regulations on the books
that allow the department to issue permits for the harvest of
miscellaneous shellfish.
SENATOR TAYLOR added that "you could do that with geoducks
today."
MR. MECUM answered that geoducks are a limited entry fishery;
therefore, the department could not issue special permits. He
said that the regulations are adopted by the Board of Fisheries.
CHAIR McGUIRE asked if one could apply for a limited entry
permit for geoducks on his/her property.
MR. MECUM replied that if one wanted to participate in a
commercial geoduck fishery, one would have to obtain a limited
entry permit.
Number 2422
CHAIR McGUIRE emphasized that she does not think the aquatic
farmers are trying to participate in a commercial fishery;
rather, they are trying to access their stocks, or not have to
differentiate between wild and farmed stock.
Number 2400
JOHN AGOSTI, President, Alaska Shellfish Growers, testified via
teleconference. He asked if it was appropriate for the Alaska
Department of Fish and Game to reserve all of Alaska's geoduck
resource to one commercial user group. He pointed out that
Alaska's other fishery resources are allocated among many user
groups. He said it is a matter of fundamental fairness that
access to a common-property resource be spread to more than one
user group. He urged the committee to reconsider and follow
through on Representatives McGuire and Scalzi's bill on aquatic
farming. Mr. Agosti seconded Mr. Weyhrauch's recommendation for
some sort of legislative resolution to some of the problems.
Number 2268
RON LONG, Qutekcak Shellfish Hatchery, said that he had heard
the number of 150 farms in the state in previous testimony, but
assured the committee that there were only 56 permitted farms in
the state presently. He said that his hatchery is successfully
growing geoducks and that he hopes to be able to supply a market
demand, "if it becomes a reality." He said that the talk about
95-percent comfort level was not correct. He claimed that his
comfort level was approximately "75 to 80 percent of the portion
of the regulations that we could talk about." He noted that
portions in litigation could not be talked about, and some of
those are critical issues. He said quantifying comfort levels
regarding the regulations is difficult because of a poor idea of
what the final changes to the regulations will be. Mr. Long
said that this is not a time to sit back and relax, but rather a
time for those concerned to remain engaged and in communication.
Number 2160
MR. LONG thanked the committee for their rush to action, and the
department for "a pretty responsive job of engaging the
stakeholders." He said that the earlier reference to growing
geoducks in intertidal zones, as in Washington, was off the mark
in terms of the Alaskan context, due to the possibility of
intertidal freezing in the winter. Mr. Long added that there
were specific application issues that needed dealing with, more
operational than regulatory.
MR. LONG said he was concerned that if the appellants win their
case, the state will appeal and the result will be a protracted
period of delay. He said the appeal process will be costly for
the farmers concerned, and possibly for his hatchery as well.
Mr. Long expressed hope that the legislature and the department
will work together to take care of everyone's interests.
Number 2005
SENATOR TAYLOR brought up the subject of "off-limits"
regulations once again. He noted that they were the "biggest
crunch part of these regs." He asked, "Is there any reason that
the department can't provide this committee with a copy of those
regs after they've come back from [the Department of] Law, and
give us a reasonable period of time to review those regs before
they're submitted to the lieutenant governor for signature?"
Mr. MECUM answered that he did not think there was time. He
said the deadlines were extended and there was just not enough
time.
Number 1917
CHAIR McGUIRE asked how many applicants the department had. She
said, "your stated reason is that you have to rush because you
have an application period that opened in January, so your
concern apparently is for the applicants." She asked who was
the rush for. Chair McGuire asked if the rush was for the
applicants and if so, how many there were.
MR. MECUM told the committee that he did not know how many
applicants, because the department was in the middle of the
application process at the time. Mr. Mecum said he would expect
quite a few. He conveyed the Department of Law's advice that
failure to draft regulations would only increase the pool of
litigants.
Number 1855
SENATOR TAYLOR said he did not see how two extra weeks spent in
having the regulations move from the Department of Law to
[Lieutenant Governor] Fran Ulmer's desk was so crucial that it
could not be spared to ensure good regulations. He made it
clear that he believed rushing the regulations was a "recipe for
litigation." He said he was disappointed in the department for
not providing enough time to review the new regulations before
they became law.
CHAIR McGUIRE asked Mr. Mecum if he had answered the question of
how many applications had been received to date.
MR. MECUM said that his department does not get the
applications; the Department of Natural Resources gets them. He
said that his department has been working hard to facilitate the
completion of the regulations.
CHAIR McGUIRE said that she would call Department of Natural
Resources for the names of concerned applicants, and ask
[applicants] whether it would be more desirable to wait another
few months for "sound, solid regs" or to have them overnight.
Number 1719
MR. MECUM asked what a "rush job" is. He said the
Administrative Procedure Act talks about a 30-day comment
period. He said it is fairly subjective, but he did not believe
it to be a "rush job."
CHAIR McGUIRE answered that the department had 15 years to deal
with these issues.
MR. MECUM said that when he came to his job two years prior, he
"got an earful" from the legislature, from "legislative audit,"
and from the industry that the department has to develop
regulations and establish "rules of the road." He said that the
department has made commitments to come up with good
regulations, but now some people are not happy with them. He
said he has tried to live up to the department's commitments and
make a "good product."
ADJOURNMENT
There being no further business before the committee, the Joint
Committee on Administrative Regulation Review meeting was
adjourned at 5:57 p.m.
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