Legislature(1999 - 2000)
01/27/1999 03:06 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
January 27, 1999
3:06 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Sean Parnell
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Lyda Green
OTHER MEMBERS PRESENT
Senator Loren Leman
Representative Scott Ogan, Co-chair, House Resources Committee
Representative Gary Sanders, Co-chair, House Resources Committee
Representative Bill Hudson, Chair, House Special Committee on
Fisheries
COMMITTEE CALENDAR
Briefing: Glacier Bay National Park and Federal Rules
WITNESS REGISTER
Mr. Rob Bosworth, Deputy Commissioner
Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
Ms. Tina Cunning, ANILCA Program Coordinator
Alaska Department of Fish and Game
333 Raspberry Rd.
Anchorage, AK 99518-1599
Ms. Dale Kelley, Executive Director
Alaska Trollers Association
130 Seward St #505
Juneau, AK 99801 907/586-9400
Mr. William Brown
Friends of Glacier Bay
P.O. Box 128
Gustavus, AK 99826
Mr. Jev Shelton, Working Group Member
Commercial Fisherman
1670 Evergreen
Juneau, AK 99801
Mr. Joe Emerson, Working Group Member
Commercial Fisherman
10410 Dock St.
Juneau, AK 99801
Mr. Dick Hofman, President
Board of Alaska Trollers Association
130 Seward St #505
Juneau, AK 99801
Ms. Deb Woodruff, Working Group Member
Gustavus, AK 99730
Mr. Gerald Merrigan
Petersburg Vessel Owners Association
Box 232
Petersburg, AK 99833
Mr. Tom Traibush, Working Group Member
Gustavus, AK 99730
ACTION NARRATIVE
TAPE 99-3, SIDE A
Number 001
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:06 p.m. and announced that the Committee would receive
a briefing on the Glacier Bay National Park and Federal Rules
issues.
MR. ROB BOSWORTH, Deputy Commissioner, Department of Fish and Game,
said the main document he would be using in his comments was
labeled "Briefing on Glacier Bay Commercial Fisheries." He said
the most efficient way to work through the issue was to work
through a chronology and three chronologies had been developed.
The first section of the chronology was put together by Tina
Cunning a few years ago.
MS. TINA CUNNING, ANILCA Program Coordinator, said she would
highlight some dates that were not on the chronology.
February 26, 1925 is when Glacier Bay National Monument was created
by a Presidential Proclamation (Executive Order).
April 1939 is when Glacier Bay National Monument was expanded with
an additional 900,000 acres which is frequently shown on maps to
include a boundary line out to the three-mile limit including parts
of Excursion Inlet. It's an area, if you match the acreage, the
State has long contended that the 900,000 acre addition really only
included the uplands. This has been a constant dispute.
CHAIRMAN HALFORD asked if the original acreage only included
uplands.
MS. CUNNING affirmed that the original acreage was only uplands.
In 1959 Alaska reached statehood (Statehood Act). State management
of fisheries followed in 1960.
On December 2, 1980 the Alaska National Interest Lands Conservation
Act was passed. It expanded and redesignated the existing parks
and refuges and created new parks and refuges. In late December,
1980, the National Marine Fisheries Service adopted whale
regulations that prohibited commercial fishing for certain prey
species within Glacier Bay waters. These were not Park Service
regulations.
In May 5, 1982 the Solicitor wrote a memo to the National Park
Service Director (NPS) that stated they believed they could extend
their jurisdiction and they could prohibit commercial fishing in
Glacier Bay. At the request of the Citizens' Advisory Commission
on Federal Areas (a commission established through the legislature
and the administration), on September 29, 1982 the Attorney General
refuted that earlier solicitor's opinion believing that the waters
and submerged lands were not within the Glacier Bay boundaries and,
therefore, you could conclude from that that commercial fishing
could not be prohibited under Park regulations.
On April 6, 1983 the Park Service published a rule to close
portions of the three old parks: Glacier Bay, Katmai, and Denali.
The Glacier Bay closures included certain snowmachine and airplane
closures as well as commercial fishing. April 6 - 10 of 1983 there
were public hearings on those regulations and a draft General
Management Plan out that had been required under ANILCA's
provisions. These established how lands and resources were to be
managed. The Management Plan was out for review in 1983. The
first April 1983 regulations the Park Service proposed were never
implemented.
On June 30, 1983 the National Park Service published national
regulations which prohibited commercial fishing. These will be
referred to at times, because Alaskans who had been here with the
passage of ANILCA and the interim regulations which were published
for the parks and refuges in 1981 and 1982 believed that the ANILCA
legislation superseded the national regulations. In other words,
the national regulations didn't apply if there were Alaska
regulations. These 1983 national regulations are something the
Park Service goes back to frequently as their justification for
closure of commercial fishing and Ms. Cunning believes it doesn't
apply.
On July 20, 1984 the final general management plan for the National
Park service was adopted and it allowed commercial fishing to
continue in the park. On May 10, 1985 we had whale regulations
adopted which exempted the commercial fishing vessels from entry
permits. They still prohibited certain prey species from being
harvested within Glacier Bay, but did not affect commercial fishing
in other ways.
In 1986 the ANILCA 13.17 wilderness reviews were completed in which
Park Service had worked with the State on proposed changes to the
wilderness boundaries which would have accommodated some of the
activities which were going on in some places in Glacier Bay that
were within designated wilderness areas which, by all rights,
probably were not activities which, had Congress had the time to
look at in detail, have been included in a wilderness designation.
The Park Service actually worked cooperatively with the State
during that process.
On August 29, 1988 the Governor's Office sent a review of the
wilderness EIS's to the regional director. In regards to Glacier
Bay, Ms. Cunning pointed out that they did not waive our
jurisdiction or our claims to ownership. The Work Group
appreciated being able to work together with Park Service
personnel, but didn't believe Park Service has the jurisdiction to
affect our commercial fisheries.
On October 17, 1988 the final wilderness EIS was adopted proposing
various wilderness waters additions and deletions which would have
resolved some of the issues facing us today. Those wilderness
proposals, required by ANILCA, went back to the Department of
Interior, but had never been forwarded.
On May 22, 1989 the Glacier Bay superintendent wrote a letter to
the Department of Fish and Game requesting that the Department
cease issuing subsistence permits - that subsistence fishing was
prohibited in Glacier Bay.
In July of 1989 the U.S. House of Representatives attached to its
appropriations bill directions to the National Park Service to quit
discouraging subsistence fishing in the waters of Glacier Bay.
On February 2 - 3, 1990 the Citizen's Advisory Commission on
Federal Areas had public hearings and the National Park Service,
for the first time, advised that it was considering that commercial
and subsistence fishing was illegal in all of Glacier Bay. There
was a series of public hearings. In 1990 the Commission wrote to
the director of the National Park Service requesting that the
studies that were being proposed be cooperatively conducted with
the State in terms of evaluating the commercial fishing industry,
its impacts, the needed studies, etc.
Number 224
MR. BOSWORTH continued with the chronology, starting with 1990. On
July 2, 1990 a memo was written from Collingsworth to Evison that
reiterates the State's opposition to the wholesale exclusion of
commercial fisheries, specifically speaking to wilderness waters.
The sequence of discussion throughout the 1980's was first in
regards to wilderness waters and later, closure of subsistence
fisheries. MR. BOSWORTH'S observation was that wholesale
exclusions of commercial fisheries beyond wilderness waters was one
that didn't really evolve in the record until the early 1990's.
Another theme reiterated in the Collingsworth memo is that we have
agreed to identify ways to preserve the integrity of natural fish
populations and national park values in Glacier Bay while also
allowing traditional commercial and subsistence fisheries to
continue. This is the notion that there need be no incompatibility
between commercial fishing and the natural values of the park.
The Glacier Bay Citizens' Caucus is the first organized group that
met on a regular basis to discuss this whole issue and was
organized by the Southeast Alaska Conservation Council (SEACC).
They developed a proposal continuing subsistence use on the outer
coast and Icy Straits open to commercial fishing in perpetuity,
closing wilderness waters to commercial fishing, identifying
special marine management areas, studying the rest of the waters to
determine the impacts of fishing on the Park, and retaining
commercial fisheries based on the results of studies. This draft
proposal will appear throughout the 90's in various formats,
including Congressional legislative drafts.
September 1991 was the first introduction of Glacier Bay
legislation with the inclusion of a cruise ship issue. It wasn't
until August of 1991 that the first rule was advanced that would
phase out commercial fishing in the Park. At that time that
version allowed commercial fishing to continue for seven years,
during which time studies would be done to evaluate the effects of
commercial fishing. The continuation of fishing past that date
requires a finding of no harm to park values and purposes. The
burden of proof would be on the fisheries.
Glacier Bay legislation was amended in 1992, and reintroduced in
the House and Senate in 1993 when there was a new consensus process
developed known as the Southeast Working Group, consisting of
allied fishermen of Southeast Alaska, SEALASKA Corporation, SEACC,
and ADF&G. Mr. Ron Somerville was the moderator. The main product
of that group is a letter that went to the Secretary of Interior.
A portion of it says, "Overall we are convinced that through
meaningful partnerships there are ways to accommodate national park
values and resources protection in Glacier Bay while allowing
traditional uses to continue." The Working Group consensus points
speak to continuing traditional fisheries, and 10 years of unbiased
studies would be necessary to demonstrate damage to the Park before
fisheries would be closed. This shifts the burden of proof in the
other direction. Wilderness boundaries would be adjusted to avoid
conflicts with commercial fishing.
There was an interim proposal in 1994 on Glacier Bay which was in
the context of potential legislation reiterating the same theme
brought out by the Working Group. They were advanced in a draft
proposal which didn't make it past the draft stage, perhaps because
legislation at this point was foundering in Congress. MR. BOSWORTH
understanding is that it was from opposition of the national
environmental groups.
In 1995 he became personally involved and convened the Glacier Bay
Work Group consisting of SEACC, the Hoonah Tribe, Allied Fishermen
of Southeast Alaska, Friends of Glacier Bay, Citizen's Advisory
Committee, Sierra Club, Defenders of Wildlife, National Parks and
Conservation Association; the National Park Service was observing.
In the most recent work effort, they included representatives from
the national conservation groups.
The State position consistently articulated during those working
group meetings followed the same theme - that there was no need to
restrict or close fisheries. Ways could be developed so that
fisheries and national park resource values could be found to be
compatible. MR. BOSWORTH referred the Committee's attention to a
map entitled Southeast Alaska Conservation Council and Allied
Fishermen of Southeast Alaska Position on Glacier Bay Management,
dated May 21, 1998. This doesn't represent all of the working
group participants' unanimous agreement, because they didn't have
complete agreement on everything, particularly the question of a
phase-out.
Number 375
CHAIRMAN HALFORD asked if the ground rules were that they had to
have agreement on a complete package or was it something that could
be broken up into pieces.
MR. BOSWORTH replied that as facilitators it was determined that it
was not necessary to have 100 percent agreement. The biggest split
was whether there would ultimately be a need to phase out fisheries
in Glacier Bay. He said they came to agreement on no-fish zones,
seasonal closure, limits in numbers of vessels. He clarified that
one of the ground rules was that there was no position until there
was a complete package that people could vote up or down on, and
they never got to that stage.
CHAIRMAN HALFORD said didn't understand the answer and asked what
it meant when the ground rules said the group would operate by
consensus, being defined as a concurrence of all participants. It
says there will be no minority or majority reports.
MR. BOSWORTH explained that there were really two facilitated
efforts and the ground rules he was reading from were from the very
first meeting.
In 1997 the National Park Service issued new draft regulations
phasing out fishing in and around Glacier Bay which is what the
committee will be responding to before the February 1 deadline.
The work of the Work Group was preempted by action of congress.
There is a question of economic relief of other small businesses
and communities that are disadvantaged as a result of congressional
action. There seems to be a will to visit that part of the issue
as well as funding for ongoing research.
CHAIRMAN HALFORD asked what was his interaction with delegation
with regard to the 1998 amendment. It seemed like they were fast,
furious, and done. What was the State's position?
MR. BOSWORTH answered that there was no State involvement in the
development of the 1998 legislation. They became involved when
they were sent a draft of the bill along with everyone else. He
said there was fine tuning of the draft.
CHAIRMAN HALFORD asked if he was satisfied with the fine tuning.
MR. BOSWORTH answered that he wasn't involved personally; that it
was handled out of our Washington office. There are things to be
done yet.
CHAIRMAN HALFORD asked if we had an absolute guarantee of continued
State management on the outside coast.
MR. BOSWORTH answered that he is told our interests are protected,
but he urged the committee to ask legal counsel.
REPRESENTATIVE HUDSON asked if the State was still active in any
lawsuit claiming that these waters are our waters.
CHAIRMAN HALFORD said the answer was yes and we would hear from
council, but he wanted to make sure and hear from members of the
Working Group and members representing those who have something to
lose directly.
Number 450
MS. DALE KELLEY, Executive Director, Alaska Trollers Association,
said she would respond to the committee's questions.
CHAIRMAN HALFORD asked her to tell him what we could do to defend
our position. He believes that those are our waters and we don't
want to give anything away. He wants us to be on record doing as
much as we possibly can to defend the interests of the State, its
residents, and the promises that have been made in a series of
federal acts over a number of years to protect traditional uses in
those areas.
MS. KELLEY responded there was a lawsuit, Alaska Wildlife Alliance
v. the Park Service, that regarded whether or not ANILCA prohibited
commercial fishing. The Ninth Circuit court determined that it
didn't, but that the Park Service can regulate or deregulate
fishing in their waters.
She said the State is very protective of our jurisdiction over
these waters and wants State management exclusively. We do not
want the Secretary of Interior managing our fisheries. We have
seen gross examples of why we don't want the Park Service managing
our fisheries. The prime example is the Environmental Assessment
that surrounds these regulations. After years of meetings, they
still don't have the slightest inkling of how these fisheries are
managed, where they occur, whose doing them; that they are not out
of control fisheries with no limits set. They don't seem to have
any inkling that we in Southeast Alaska have a great dependency on
commercial fishing.
About 20 percent of the tanner crab harvest in Southeast comes out
of Glacier Bay proper and a great many of those permits come out of
Petersburg. The EA states that the only community that's really
going to be affected is Hoonah. So, MS. KELLEY questioned why the
whole Southeast Conference felt it was important to pass
resolutions. The State Chamber of Commerce listed it in the top 20
of their priorities for the State this year in their lobby efforts.
People throughout the State think it's important, but the Park
Service doesn't. So there is great concern about them managing our
fisheries.
MS. KELLEY explained that the ground rules were worked out on the
first two days and haven't changed since and her understanding of
consensus is that they were striving for total consensus, that a
deal wasn't a deal until it was a package. She said this was an
advantage to both sides. Her position was that she would talk
about anything, but it was very important for the outer waters to
be secure. They ended up not having consensus in the whole group,
but within portions of the group. She thought they were in
gridlock at this point. Some of them might be able to go forward
together and other ones need to just argue the points they don't
have agreement on.
MS. KELLEY said she would like to see the legislature concentrate
on some of the legal aspects. She wanted to see all the State's
arguments laid out and protected. She did not want to leave
anything out.
CHAIRMAN HALFORD said it was his hope to make a recommendation to
the two presiding officers so they could make comments before the
closing period.
MS. KELLEY said she would really look at the Regulatory Flexibility
Act. There have been some modifications since the Glacier Bay
issue. In terms of protecting small businesses in Congress, in 1996
Dale Bumpers led a charge and did some modifications that are
interesting. Park Service hasn't done its job analyzing this issue
from the economic standpoint, either under the Regulatory
Flexibility Act or NEVA. As dependent as these communities are, it
is very important to the State that they remain solvent. The Park
Service doesn't think from the fishing perspective of having to go
halibut fishing so you can gear up for king salmon. There is not
much money in real terms.
CHAIRMAN HALFORD said it was frustrating to see how they can worry
about Gillnetters, seiners and crabbers and at the same time say
it's fine to increase the 30,000 ton ships.
MS. KELLEY agreed and said they have had some fortunate alliances
in the environmental arena. She thought it was important to make
sure the State's bases are covered for the future and that we very
carefully explore the options from here.
CHAIRMAN HALFORD said that he understands that they intend to go
forward with the proposed rule making - to fill in all the blanks
with a February 1 comment deadline. He hoped they could at least
recommend going back to a completely new rule making process and
provide the kind of input they ought to have.
MS. KELLEY said the State, through the Governor's office, has asked
twice for a new rule making. They haven't received the courtesy of
an answer.
SENATOR TAYLOR stated that he is so frustrated that they have had
to go through all this work. Apparently, the Submerged Lands Act
means nothing, the Statehood Act and Compact mean nothing.
TAPE 99-3, SIDE B
Number 560
SENATOR TAYLOR said he watched this same government drive all the
foresters out of the woods and now he has to fight to keep them
from driving the fishers off the seas. He said he is tired of
begging.
MS. KELLEY said that the Working Group process has been painful,
because you always know that you're going to come out with less.
If you don't have anything to trade, why negotiate? Industry
really hasn't felt there was much choice. Some of the problems
facing them are that some of the criteria they have laid out are so
stringent that you could go from 400 to 15 boats in some fisheries
- or sometimes five or 10 because we have never managed our
fisheries data to match what they are trying to match up with.
They can't show landings, for instance.
CHAIRMAN HALFORD said the State should be negotiating from what he
believes - that the State owns all the tide and submerged land in
the Tongass and in Glacier Bay - and in Glacier Bay particularly,
because of isostatic rebound. We probably own all of the coastline
about one lot deep around the whole Bay. We ought to be pointing
out to our Canadian friends who may want a salt water port that Tar
Inlet now goes about two miles into Canada. If they want to argue
with the Park Service, they should start building a road to their
salt water port. We should start arguing from those points and
then if you have to compromise, maybe you could save the
traditional uses that exist. He never saw initial surrender as the
best way to avoid a battle.
SENATOR MACKIE said that this issue is of significant concern to
him also. The Finance Subcommittee on Fish and Game last year
funded a couple hundred thousand dollars to assist the Working
Group, taking the money from the Attorney General's statehood
rights budget. At that time it was felt that the legislature could
contribute in that manner and the consensus group would come up
with something workable.
He said that native people of Hoonah and other surrounding
communities, as well as the commercial fishing industry, have been
utilizing Glacier Bay forever. It doesn't get any more complicated
than that. For the Park Service to come in and assert this kind of
takeover is completely offensive to him and other members. He
would be one of the ones to line up behind a full-blown lawsuit.
Having said that, he asked if the funding helped and did MS. KELLEY
feel at some point it is going to be time for a unified effort
between the State of Alaska, the subsistence users, and the
commercial fishing industry to get behind a full-blown lawsuit and
take our chances that way.
MS. KELLEY answered that the money really has helped. It has
enabled ADF&G to work very closely with the Group. They have been
wonderful about cooperating in terms of deciding what's appropriate
to spend it on. Fishermen have gone to D.C. and to Juneau to work
on this issue, educational materials have been distributed. At
some point, however, the State is going to have to take this on.
She didn't know if this was the time.
SENATOR MACKIE asked her what her feeling was about congressional
actions being taken.
MS. KELLEY answered that the dynamics in D.C. are very intense.
Senator Stevens jumped when we were going to hold up the entire
federal budget. All the industry had asked for was a one-year
moratorium on the regulations so they could continue to work. The
good news is that fishing is in the statute and is recognized as an
appropriate use by Congress, but they also took some of the Park
concepts and solidified them into statute, which concerns her.
When Senator Stephens started working on the issue, the Group did
not have communications with their office until about half a day
before it went in, and there wasn't much they could do about it.
One thing the Legislature could help them with is to insure that
they work with the congressional delegation as the language is
being crafted.
SENATOR PETE KELLY said he totally supported her position, as he
hoped she would support his timber and mining industry position in
similar circumstances.
CHAIRMAN HALFORD said he thought the congressional office was
frustrated at not getting a consistent position from the State as
to what to do.
MS. KELLEY stated that ADF&G had been great to work with, giving
insight into where they are going. The staff working on this issue
should really be commended.
MR. WILLIAM BROWN, Friends of Glacier Bay, handed his position
statement to the committee. He is a permanent resident of Alaska,
living here since 1975. He has worked as a career National Park
Service historian, worked in several parks, and worked on the D2
Task Force. He endorsed the legislative framework negotiated with
the Secretary of the Interior by Senator Stevens. The result is
general resolution that, in his view, fairly reconciles National
Park values and the social and economic interests of local
fishermen and communities. The rule making will allow fine-tuning
adjustments within the statutory frame. The mainframe provides for
continued commercial fishing in the Parks outer waters from
Excursion Inlet all the way to Cape Fairweather, a life-tenure
phase-out for qualified fishermen in the Bay proper with a special
provision for buy-out dungeness crabbers who have been fishing in
Park wilderness waters. A cooperatively designed fisheries
management plan should be designed with appropriate official
representation and/or advisory consulting representation from
federal, state, fisheries boards and commissions, fishing
communities, and conservation interests to properly balance these
interests in this new legislatively chartered Park waters fishery.
The prior agreement of the Secretary and the Senator to this
legislative solution would indicate appropriate oversight to
protect both conservation and fishing in the development and
operation of the fisheries management plan which would be
administered by ADF&G. This legislative base which blends these
two critical concerns should provide comfort to both of them. The
law institutionalizes what has heretofore been a contest of
principles, jurisdictions, and wills, breeding uncertainty and
insecurity on all sides. In addition, the juxtaposition of fished
and unfished waters offers research opportunities that can benefit
fisheries both within and beyond park waters. He concluded, "Now
begins the hard work to make the law work as intended."
He said the Park Service had not fulfilled their obligations in the
rule-making, changing direction a couple of times and not dealing
with the economic impacts this might have which is required under
the Flexibility Act. It generated an environmental assessment
document that consciously ignored all of the input in terms of
biological data and analysis that was available from the Department
of Fish and Game and industry over time, and laid out a set of
misleading statements, hypothetical "ogres." It was an exercise in
fear-mongering rather than a document that laid out any kind of an
objective assessment of what the resource is like.
MR. SHELTON noted Senator Mackie's statement was true that no one
had been able to come up with anything that has occurred to the
negative advantage of the resource by the conduct of our fisheries
in these waters. They are healthy stocks and are very well-managed
fisheries. It's a very stable situation. There are no credible
examples of conflict of users between commercial fishing and other
users of the Park who are there for more recreational purposes. To
the contrary, virtually all of the feedback he gets is that fishing
vessels in there are an added feature that actually enhance the
experience of visitors to the Park. One morning one of the big
vessels of the Holland Line came out of the Muir Arm, saw that he
was hauling gear, and came so close that they could have almost
touched. He and his boy obligingly held up a 150-pounder and swore
the boat had a list, because there wasn't anyone on the boat who
wasn't leaning over the rail watching.
He said this is an irrational decision about a rational situation.
The Park Service should withdraw the environmental assessment and,
because they have mishandled the economic issue, should be required
to submit an environmental impact statement.
TAPE 99-4, SIDE A
Number 001
SENATOR TAYLOR commented that the Park Service didn't do a full
Environmental Impact Statement; they just did an environmental
assessment disregarding most of the input they received.
MR. SHELTON responded that they totally disregarded the input that
came from outside of their own particular biases.
SENATOR TAYLOR said this should certainly be one of the points we
consider in our comments that we request they conduct a full-blown
EIS and do something on the economic information.
MR. SHELTON added that one of the things that he finds particularly
offensive is, that document provides the basis on which the
concerned public is supposed to make its judgements and offer its
input on issues. It's so misleading and erroneous that that should
be the cause to redo it. They deemed by edict that there were no
economic impacts.
SENATOR TAYLOR said the State has the same option we had in the
Dinkum Sands case, but oil was important enough to go directly to
the U.S. Supreme Court on a direct action lawsuit. We need to start
the consulting process so we aren't sharing ignorance.
SENATOR MACKIE asked if he felt as a stakeholder he would have a
seat at the table with the delegation in the congressional arena to
try to make his case for a true consensus. He thought it was
important to know if there was even a slight chance. He thought it
important for us to let them know we are willing to litigate this
issue, but allow for the stakeholder process to continue if the
legislature would provide additional financial support for that
effort.
MR. BROWN answered that no matter what we do, we would elicit the
immediate knee-jerk reaction from most of the national
environmental groups in opposition who can bring down some
formidable forces. He thought there had been success in getting
consensus among Alaskan interests. The opposition in the Work
Group came mostly from the national environmental groups, one of
which was acting as a proxy for the Park Service.
Number 150
REPRESENTATIVE HUDSON asked if we should have a legislative hearing
on the environmental assessment, with the people who prepared it
presenting it along with others who wish to testify and shed some
light on the inaccuracies, etc.
MR. JOE EMERSON, commercial salmon troller and longliner, said he
had fished in Glacier Bay since he was 16 and he is now 42. He has
participated in the Work Group meetings over the last two or three
years and he thought there was a reluctance on the part of the
State to enter into any kind of litigation regarding the
jurisdiction of submerged lands in Glacier Bay. On the other side,
he felt there was a high degree of confidence on the part of the
Department of Interior and they were not intimidated by the idea of
litigating this issue. He thought that unfortunately influenced
the negotiations. He wished they could have settled the issue of
the jurisdictional rights immediately because it might not have
been necessary to make the concessions they did. The bottom line
for the Park Service was that some type of phase-out was going to
have to occur and at some point in the future commercial fishing
was going to come to an end. He did not feel that they ever moved
off that position at all. They offered a lot of concessions to buy
them off of the concept of phase-out and buy perpetuity of
commercial fishing in Glacier Bay. They didn't respond at all to
the concessions, but then they incorporated every concession the
fishermen made into their demands.
Without knowing if the State has jurisdiction, it's hard to tell
how big a hammer anyone has. He and his family are totally
dependent on commercial fishing and trolling, so the risks are
rather high. He would have to start over at the bottom again. His
willingness to risk the future of the fishery might have been a
little bit more conservative than others, but he thought they had
all agreed that they wanted commercial fishing in perpetuity.
SENATOR MACKIE asked if the Work Group had an opportunity for
discussion with Senator Stevens before the resolution was hammered
out.
MR. EMERSON replied no; when he heard that Senator Stevens was
involved, it was a surprise. It was Senator Murkowski who was most
involved until that time. It was definitely communicated by the
Park Service and environmental groups that they would not accept
any kind of legislation that did not call for an eventual phase-
out.
SENATOR PETE KELLY said he thought we should discuss our options
soon to bring about a quick solution to this situation. People's
entire futures are at stake here. Thirty thousand loggers in
Oregon faced the same future and they lost.
SENATOR TAYLOR said he had been a commercial fisherman and totally
sympathized with his predicament. He offered to get him a copy of
the last U.S. Supreme Court case to address the issue of submerged
lands in Alaska (Dinkum Sands -1997). The 9-0 vote reiterated the
fact that the State of Alaska owns all of the submerged lands. The
Court went so far as to say "and the fish that swim therein." He
thought there was a window of opportunity in the U.S. Supreme Court
because of their recent decisions which are much more states'
rights oriented and much more constitutionalist.
Number 349
MR. DICK HOFMAN, commercial fisherman, said he participated in the
Work Group the last couple of years and was the President of the
Alaska Trollers Association for about seven years. During the Work
Group process the word from the Interior Department was that they
couldn't put forth any proposals to resolve the situation. It was
difficult to feel that they were in an honest negotiating
situation. The environmental assessment that has been done is
inadequate and an environmental impact statement is required
including looking at the economic impacts to the fishermen, the
support industries, and the communities that are dependent upon the
resource. He concluded saying that all his other comments had
already been made.
CHAIRMAN HALFORD asked if he felt the State had taken a consistent
position on this.
MR. HOFMAN answered that to date they had been supportive of the
Work Group process, although he would like to see more direction in
terms of a big hammer that Mr. Emerson mentioned.
CHAIRMAN HALFORD asked if the State was going to comment on the
draft regulations.
MR. BOSWORTH answered that the State is going to comment.
MS. CUNNING explained that the comments were under review right
now.
CHAIRMAN HALFORD asked if the committee could get a copy of the
draft so they could participate.
MS. CUNNING thought they could get one tomorrow.
MS. DEB WOODRUFF, Gustavus resident, said she has been a long-time
member of SEACC and an ex-member of Friends of Glacier Bay. When
they grew to a size of 100 people, the majority were from outside
the Gustavus community and no longer represented local attitudes
towards Glacier Bay. They were primarily Park Service employees,
past or present. She fished with her husband for dungeness crab in
Glacier Bay for almost 20 years and has been involved for 12 years
in this issue. The question has been who has control of the
waters: the State or the federal government; and the authority to
rule on whether or not fishing is a legal activity within a
national park. Too often the goal appeared to be reaching
consensus on these issues. She was pleased to see how many points
of agreement there were, but it was only the chasms that were
bottomless that made efforts toward compromise an ugly ordeal. As
a member of the Compensation Committee she made a great effort to
inquiry others about possible solutions. She was eventually
directed to the Economist for the Department of Interior, Mr.
Goldstein, who recommended that there was no need to compensate
Alaskan fishermen or the State of Alaska since there was no finding
of significant economic impact. She asked why and was told that
fishing was deemed an illegal activity in National Parks by
regulation, no one could make claims for lost income when it was
never legal in the first place. He explained to her that the
economic loss incurred when evaluated by the Small Business
Administration had to be so high in terms of volume and national
interest, that not a single industry in Alaska would merit
consideration of significant losses. She thought that was
astounding.
From this fixed position the Department felt it didn't need to
offer any socio-economic impact studies about what their actions in
closing down an entire key industry in Southeast would cost the
State or its residents. Since no Park Service studies were
available on impacts, and an EA diminished the importance of
fishing to communities like Gustavus and Petersburg, she insisted
that the fishermen be allowed to present their attitudes on what
the losses were to the fleet and corresponding communities.
Although we have listened to years of testimony by the Park Service
and Department of Fish and Game scientist, no word was heard from
those being deposed. They were given one and a half hours, and
certain people were kept from sharing their findings from a
National Park Service study. It reflected comments from over 50
fishermen on their history in Glacier Bay and what the closures
would mean in their lives. They were given their day-in-court and
much new evidence came forth, especially from Alaska Discovery,
about how fishing was a non-issue for them regarding negative
responses from clients in Glacier Bay. They were upset that the
Service was continually and repeatedly making out that kayakers'
and campers' experiences were diminished by their marginal contact
with fishing boats in the Bay. It was pointed out that it was the
highlight of the trip if one had some contact rather than the
opposite.
Although the stakeholder process was a good idea in theory and a
few beneficial elements came out of it, none of them were applied
in the final legislative solution. The purpose of the committee
was to ascertain areas of agreement and then move on to areas of
negotiated compromise or disagreement. Continually the State's
position came across as weak and indefensible. Definite signals
were sent that no one wanted a legal battle and other cases were
pending. A strategy for a state's rights platform was missing.
She saw no use of state experts or presenters. For example, no one
outlined the law as it is stated in ANILCA or Dinkum Sands; there
were no state fisheries economist statements or field specialists
to refute Park Service VRD scientific findings in their biased
report.
She asked why comments from ex-Park Superintendent, Bob Howe,
didn't carry more weight. He signed a current petition supporting
historical levels of the fisheries in Glacier Bay under state
fisheries management. He was there when the Park established long-
lasting policy decisions regarding the continuation of existing
fisheries except in wilderness. He also informed her that no one
on his watch ever felt that the Beardsly Islands met the criteria
and qualities necessary for an area to be classified wilderness.
MS. WOODRUFF asked why top ADF&G officials did not participate in
strategizing the best outcome for the State's fishermen. This
summer the issue of compensation was discussed. Although this was
important, no numbers were forthcoming from the Department of
Interior and they were put off by being told by the Park Service,
"They were working on it." The Alaska delegation was asking for
results of negotiations to have something to place in a skeletal
bill. Time was of the essence and the Working Group met in the
fall and told Randy King that they had all the cards needed for a
decision. Molly Ross did not attend any direct meeting. MS.
WOODRUFF said that the Department of Interior irreverently stalled-
out a process that was begun in good faith and was at a point of
near resolution when Congress drafted a bill that gave some measure
of relief to those who would be immediately deposed from a lifetime
of fishing and reliance on this particular area. They figured out
how far the State would go and called its bluff; they created
divisiveness and diversion.
MS. WOODRUFF pointed out that people who fish in Glacier Bay cannot
pass their business on to their children nor can they sell it and
get any value for it. It is a lost opportunity for small
businesses and affects economic futures. She said there are no
excuses for poor outcomes. They had reached a compromise position
that was never given a chance to shine. She thanked Stan Leaphart,
Jeff Hartman, Art Kohler, Tina Cunning, Bruce Wylock,
Representative Albert Kookesh, and Senator Mackie and his staff,
for all their help. She thanked Randy King, Chief Ranger for the
National Park Service, who despite all their differences kept his
sense of balance and compassion over an impossible situation.
MR. GERALD MERRIGAN, Petersburg Vessel Owner's Association (PVOA),
said the ultimate issue is who controls the submerged lands of
Alaska. He said that Petersburg and a lot of other communities
have been left out of the impacts and commercial fishing is the
largest employer there. Fishermen are going to be impacted by this
action in three ways: displacement from Glacier Bay, the increased
competition from displaced fishermen, and a decrease in the amount
of resource space. Basically, there is more competition for less
available resource.
Number 562
In the legislation there will be three fisheries within the Bay
proper: tanner crab, halibut, and salmon troll. All other
fisheries are prohibited including dungeness crab, king crab,
ground fish, and shrimp. Petersburg has 46 percent of all the
Southeast tanner pot permits, half of all the king crab permits, a
third of all dungeness permits, and a half of the 300-pot dungeness
permits. Additionally, they have 59 seine permits, over 200 troll
permits, and over 200 halibut permits. All these fisheries are
conducted in Park waters outside the Bay proper.
This issue has been on-going since 1991 and the Park Service has
never held a public hearing in Petersburg. At PVOA's invitation
the Park Service held an informational meeting last fall, but would
not take public testimony. In the environmental assessment, the
sole reference to impacts on Petersburg reads, "The Glacier Bay
tanner crab fishery has been of historical importance to
Petersburg-based fishers. Some of these fishers may be
economically affected by the action, but it's unlikely the action
would change this well-established community's character or social
composition.
MR. MERRIGAN said they feel the Park Service has left out a lot of
communities on this. With the drop in salmon price, crabbing has
become more important to the fishing industry, particularly the
timing of the tanner fishery occurring in the middle of the winter
(giving them "a shot in the arm").
The comment period closes on February 1 for three items: 1997
proposed rule, the environmental assessment, and the new
legislation. These three documents have many contradictions. For
that reason PVOA has asked the Park Service to issue a new proposed
rule and an EIS specific to the legislation. They were denied.
TAPE 99-4, SIDE B
Number 580
MR. MERRIGAN continued saying that the average person would have a
difficult time comprehending this package, especially since the
qualifying years for participation in the Bay aren't even
specified. Regarding the 1997 proposed rule, the major flaw is
that it concludes that the Park Service is in compliance with the
Regulatory Flexibility Act as to the affects on small businesses.
The Park Service states that, "The expected redistribution of
commercial fishing efforts to areas outside the Park is not
expected to significantly effect a substantial number of small
businessmen. This is an interesting conclusion since the Park
Service did not know then and does not know now how many vessels
and fishermen they will be displacing. There is a complete absence
of rationale for this conclusion.
The EA is a 400-page document, but has three and a quarter pages
devoted to the impacts of the alternatives on fishing income. The
section labeled "issues considered, but not addressed" is longer
than that. The revenue impacts are not broken down by fishery or
community, but are presented in one full 3 x 5 inch table for all
the alternatives and all the fisheries in all the communities.
MR. MERRIGAN said another major flaw in the EA is the approach of
status quo taken by the Park Service after the no-action
alternative. Commercial fishing has occurred for over a hundred
years in Glacier Bay. Therefore, a reasonable person would
conclude that status quo would be continued fishing. The Park
Service's no-action alternative is that all fishing would end
immediately. This is in spite of the 1990 court case where the
judge ruled that there was no statutory prohibition of fishing in
the non-wilderness waters of Glacier Bay. Thus the Park Service
has attempted to shift the burden of proof, that the action is not
restricting or phasing-out fishing, but the action is whether to
allow fishing at all. Even the alternative, designated "continuous
fishing-restricted and limited participation" is, therefore, not
status-quo. The Park Service has also refused to reissue or amend
the EA that should have been an EIS in the first place.
The new legislation does one thing - it statutorily provides for
commercial fishing in Glacier Bay, but for the outside waters the
law is vague regarding development of cooperative management by the
State and the Park Service. PVOA thinks this means the State shall
manage the fisheries and the feds shall cooperate. Given the Park
Service track record, they do not trust them for cooperative
management.
Their 1984 management plan for Glacier Bay states traditional
commercial fishing practices will continue to be allowed through
most Park and Preserve waters. Halibut, salmon fishing and
crabbing will not be prohibited by the Park Service. They are
changing their minds on that. Distrust is not diminished when
browsing the Park Service Glacier Bay web page which had a hot link
to the Audubon Society where there was an article by the
Superintendent of the Park entitled, "Changes Pending for
Commercial Fishing in Glacier Bay." This link has been removed at
their request.
MR. MERRIGAN said for the three fisheries that are allowed in
Glacier Bay, king crab, dungeness, and groundfish are now
eliminated without cause. The stated Park Service intent is no new
or expanded fisheries. These fisheries are historic and under
limited entry; therefore, they are not new and expanding. It is
PVOA's position that anyone or any vessel that has fished in
Glacier Bay should qualify for a lifetime permit on these
regulations. Proof of participation can be fish tickets or
affidavits. The Park Service prefers six out of 10 years for
participation which would effectively reduce eligible fishermen by
90 percent - down to a handful. There is no rationale given for
that six out of 10 position. There is no threshold for the amount
of gear or harvest, estimated bio-amounts, or allowable harvest
rates. No justification is given other than to protect Park
values. With sustained fisheries under ADF&G management for 40
years, they think that Park values are adequately protected.
The other Park Service reason is to provide an area for the study
of marine resources. It is proper and scientific method to ask
them what it is they want to study and does this study necessarily
preclude commercial fishing. Study in Glacier Bay will not
necessarily be analogous to other marine studies as Glacier Bay is
a recently post-glaciated area. If that's what researchers are
looking for, Icy Bay may be preferable because it is considerably
more remote with less traffic by cruise ship, commercial and sport
fishermen.
MR. MERRIGAN asked why the Park Service wants to kick fishermen
out. This is the hardest thing for fishermen to understand. It's
not a resource issue; it's not a science research issue; it's not
a visitor interaction issue. The idea of commercial fishing falls
on people.
In a 1990 lawsuit, two plaintiffs, environmental groups, thought to
prohibit commercial fishing saying they suffered a diminishment of
the use and enjoyment of Glacier Bay.
MR. MERRIGAN concluded by saying that he thought they should pursue
both routes: legislation and litigation. Glacier Bay was
established with a series of land withdrawals from the Tongass pre-
statehood, but there's different issues involved. He thought the
lawsuit has been chosen to move ahead and he thought the Department
of Law should become involved.
Number 538
SENATOR MACKIE made a motion to adopt the following: "I move that
the Senate Resources Committee be firmly on the record in support
of continued commercial fishing and subsistence uses within Glacier
Bay and that we believe this is clearly a state's rights issue and
that the chairman work with the affected parties to draft
appropriate testimony to be offered into the record in the form of
a letter from the legislative leadership on the issue." There were
no objections and the motion carried.
CHAIRMAN HALFORD invited anyone listening to submit testimony for
their consideration.
Number 510
MR. TOM TRAIBUSH, Gustavus, supported previous comments. He noted
that the last set of meetings started in 1995 and at that time the
environmental groups were willing to consider some areas of the Bay
being left open in perpetuity to commercial fishing. They had
restraints on holding more meetings, but then the idea was
introduced as a proposed rule. He said that fishermen and
environmental groups had both taken steps to get to some middle
ground, but the proposed rule leaves them in the middle and the
Park Service took three steps back. He thought the Park Service
strong-armed the fishermen into thinking there was no legislation.
He said he didn't have a lot respect for the Governor on this issue
because he has never taken a real strong stand.
A copy of a letter preceding the interagency meeting on marine
reserves from 1996, a Park Service document, said according to
Molly Ros, the Park Service's goal is to eliminate commercial
fishing because it is an illegal extractive use and they are trying
to marry this to the reserve concept. How are these concepts
different? Are they not very similar? Jim Taggart, head researcher
at the Park Service, responded that they are backing into the
marine reserve concept because we want to close the Park for
political reasons. This is the way they think. It has nothing to
do with the actual extraction of the resource.
He said we should be dealing with our delegation on this issue.
One of the problems is, even if people are grandfathered in for a
lifetime, everybody in that fishery feels the effects of that loss.
If you're a troller, the value of your permit is less because the
guy you sell it to can't go there and fish. The six-to-10-year
time frame is an arbitrary number fixed by the Park Service.
Dungeness crewmen would lose jobs and communities would lose
processors, and these are definite economic impacts.
CHAIRMAN HALFORD asked people listening in to fax the committee
their comments and they would be circulated. He noted that both
Senator Murkowski's and Congressman Young's offices were on
teleconference. He announced there would be another meeting on
this issue on Monday and adjourned the meeting at 5:45 p.m.
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