Legislature(1999 - 2000)

04/13/2000 03:25 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                    SENATE RESOURCES COMMITTEE                                                                                
                          April 13, 2000                                                                                        
                             3:25 p.m.                                                                                          
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Rick Halford, Chairman                                                                                                  
Senator Robin Taylor, Vice Chairman                                                                                             
Senator Pete Kelly                                                                                                              
Senator Jerry Mackie                                                                                                            
Senator Lyda Green                                                                                                              
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Sean Parnell                                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE JOINT RESOLUTION NO. 60                                                                                                   
Opposing the designation of millions of acres of Alaska as critical                                                             
habitat for the Spectacled Eider and the Steller's Eider.                                                                       
     -MOVED SCS HJR 60(RES) OUT OF COMMITTEE                                                                                    
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                              
                                                                                                                                
HJR 60 - No previous Senate action.                                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. Scott Petsel                                                                                                                
Staff to Representative Gail Phillips                                                                                           
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Testified for sponsor of HJR 60.                                                                         
                                                                                                                                
Mr. Richard Hannon                                                                                                              
U.S. Fish and Wildlife Service                                                                                                  
1011 East Tudor Road                                                                                                            
Anchorage, AK  99503                                                                                                            
POSITION STATEMENT:  Explained why the USFWS is proposing to                                                                  
designate critical habitat for two eider species.                                                                               
                                                                                                                                
Mr. Wayne Regelin                                                                                                               
Division of Wildlife Conservation                                                                                               
Alaska Department of Fish and Game                                                                                              
PO Box 25526                                                                                                                    
Juneau, AK  99802-5526                                                                                                          
POSITION STATEMENT:  Supports HJR 60.                                                                                         
                                                                                                                                
Ms. Marilyn Crockett                                                                                                            
Alaska Oil and Gas Association                                                                                                  
121 W. Fireweed Lane                                                                                                            
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Supports HJR 60.                                                                                         
                                                                                                                                
Mr. Ken Freeman                                                                                                                 
Resource Development Council for Alaska                                                                                         
121 W Fireweed Lane                                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Supports HJR 60.                                                                                         
                                                                                                                                
Mr. Ken Taylor                                                                                                                  
Division of Habitat and Restoration                                                                                             
Alaska Department of Fish and Game                                                                                              
PO Box 25526                                                                                                                    
Juneau, AK  99802-5226                                                                                                          
POSITION STATEMENT:  Supports HJR 60.                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 00-24, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD  called the Senate  Resources Committee  meeting to                                                          
order  at 3:35  p.m.   Present  were Senators  Green,  Taylor,  Pete                                                            
Kelly, Mackie, Lincoln  and Chairman Halford.  The committee took up                                                            
HJR 60.                                                                                                                         
                                                                                                                                
             HJR 60-HABITAT FOR ENDANGERED EIDER DUCKS                                                                      
                                                                                                                                
MR. SCOTT PETSEL, legislative  aide to Representative Gail Phillips,                                                            
gave  the  following  overview  of  HJR 60.    The  House  Resources                                                            
Committee sponsored HJR  60 at Representative Phillips' request.  In                                                            
February  of  2000,  the U.S.  Fish  and  Wildlife  Service  (USFWS)                                                            
published  a  proposed  rule  change to  designate  large  areas  of                                                            
Alaska,  more than  75,000  square miles,  as critical  habitat  for                                                            
spectacled  and  steller's  eiders.    The  eiders  were  listed  as                                                            
threatened  under the  Endangered  Species  Act (ESA)  in the  early                                                            
1990's.  At that time,  the USFWS did not consider the establishment                                                            
of critical  habitat  areas for  the eiders  to  be prudent  because                                                            
potential habitat  loss was not considered a limiting  factor in the                                                            
recovery of  the species.  In September  of 1999, the Department  of                                                            
Interior  entered  into an  agreement  to re-evaluate  the  critical                                                            
habitat  designations   based  on  a  lawsuit  by   a  coalition  of                                                            
environmental  groups.    In addition,  previous  court  rulings  in                                                            
similar  cases  overturned  other  USFWS  determinations   that  the                                                            
establishment   of  critical   habitat   areas   was  not   prudent.                                                            
Establishing  critical   habitat  in  these  areas  of  Alaska  will                                                            
adversely affect  resource development,  subsistence and  commercial                                                            
fishing.   This  designation  will slow  up the  federal  permitting                                                            
process by  requiring an additional  level of consultation  with the                                                            
USFWS.   This will  essentially  duplicate the  level of  protection                                                            
already afforded under  Section 7 of the ESA and allow an additional                                                            
opportunity  for filing  a third  party  lawsuit to  halt, slow,  or                                                            
discourage   development    and  investment    in   these   regions.                                                            
Additionally, certain federal  permit applications that meet Section                                                            
7 requirements  are simply not allowable by law in  critical habitat                                                            
designated areas.   HJR 60 resolves that the Legislature  oppose the                                                            
designation  and  asks  Governor  Knowles  to  pursue  legal  action                                                            
against the  USFWS if the  regulations are  adopted.  It also  urges                                                            
the  Alaska  delegation  and  Congress  to assist  in  blocking  the                                                            
adoption of  the final regulations.   He asked committee  members to                                                            
support the resolution.                                                                                                         
                                                                                                                                
Number 282                                                                                                                      
                                                                                                                                
MR. RICHARD  HANNON,  Chief of  Fisheries and  Ecological  Services,                                                            
USFWS,  gave the  following  testimony.   The spectacled  eider  was                                                            
listed as threatened under  the ESA in 1993, and the steller's eider                                                            
was listed  in 1997.  In  both cases, the  USFWS determined  that it                                                            
was not  prudent to  designate  critical habitats  because it  could                                                            
find no benefit  in doing so.  In March of 1999, the  USFWS was sued                                                            
by the Southwest  Center for Biological Diversity  and by Christians                                                            
Caring for  Creation, two environmental  groups, for its  failure to                                                            
designate critical  habitat for five California species  and the two                                                            
Alaskan species.   In general, the USFWS has found  that designating                                                            
critical habitat  is not beneficial to listed species  and so far it                                                            
has designated  critical habitat for  only 116 of the 1,206  species                                                            
listed.  Increasingly,  however, environmental groups  are suing the                                                            
USFWS for  not designating  critical habitat.   The courts  in every                                                            
case   have  determined   that   the   USFWS  has   an  affirmative                                                             
responsibility  to designate  critical  habitat  for listed  species                                                            
under the ESA.   In the future it  will be the rule, rather  than an                                                            
exception, to designate critical habitat.                                                                                       
                                                                                                                                
SENATOR  GREEN  asked  if the  courts  have  decided  that  critical                                                            
habitat should  be designated in all but exceptional  circumstances.                                                            
                                                                                                                                
MR. HANNON replied  the courts have consistently directed  the USFWS                                                            
to  designate critical  habitat.  The  USFWS has  consistently  lost                                                            
critical  habitat   lawsuits,  even  when  it  suggested   that  the                                                            
designation of  critical habitat would have little  or no benefit to                                                            
listed species.   As a result of the USFWS's litigation  history, it                                                            
now  acknowledges   that   there  is  some   potential  benefit   in                                                            
designating critical  habitat.  In addition, a large  segment of the                                                            
American  public lives in  cities and does  not make the  connection                                                            
that a species needs a  healthy habitat to survive.  The designation                                                            
of critical  habitat clearly sends  a message that a species  cannot                                                            
survive without a healthy habitat.                                                                                              
                                                                                                                                
MR.  HANNON indicated  that,  to date,  the  USFWS has  either  been                                                            
ordered  to   designate  critical   habitat  or  has  entered   into                                                            
settlement agreements in  which it designated critical habitat areas                                                            
for 264 species.  It has  agreed in declarations to propose critical                                                            
habitat  for  an  additional  18  species.    Currently,  28  active                                                            
lawsuits  have been  filed  against  the USFWS  for  its failure  to                                                            
designate  critical  habitat   for  301  additional  species.    The                                                            
environmental community  is saying that, at the time of listing, the                                                            
USFWS should  designate critical habitat.   The courts have  agreed.                                                            
The USFWS  will designate  critical  habitat as  a matter of  course                                                            
when it lists species in the future.                                                                                            
                                                                                                                                
Number 535                                                                                                                      
                                                                                                                                
SENATOR GREEN  asked whether Congress  has considered taking  action                                                            
to lessen the potential for these types of lawsuits.                                                                            
                                                                                                                                
MR. HANNON  answered he is  not aware of  any actions that  Congress                                                            
has  taken  to  limit  the  citizens'   right  to  sue  the  federal                                                            
government  under the  ESA.   The  USFWS has  supported legislative                                                             
changes regarding the way  critical habitat should be designated but                                                            
numerous attempts to reauthorize the ESA have failed.                                                                           
                                                                                                                                
MR. HANNON  continued  his testimony.    In September  of 1999,  the                                                            
USFWS entered  into a settlement  agreement  with the plaintiffs  to                                                            
re-evaluate  critical habitat designations.   It agreed to  finalize                                                            
any  proposals to  designate  critical  habitat for  the  spectacled                                                            
eider by February  1, 2000 and for  the steller's eider by  March 1,                                                            
2000.  If the USFWS determined  that such a designation was prudent,                                                            
it  would  finalize  those designations   by December  1,  2000  and                                                            
January  5, 2001,  respectively.  On  February  8, the  proposal  to                                                            
designate critical  habitat for the spectacled eider  was published.                                                            
                                                                                                                                
MR.  HANNON referred  to  a map  of the  critical  habitat area  and                                                            
publications  prepared  by  the USFWS  entitled  "Proposed  Critical                                                            
Habitat for  the Steller's Eider in  Alaska" and "Proposed  Critical                                                            
Habitat for the Spectacled  Eider in Alaska."   He reviewed briefing                                                            
papers  in  both  reports  that  cover  the  nesting,   molting  and                                                            
wintering  patterns  and habitat  of  both species  in  Alaska.   He                                                            
commented  that the area  is enormous and  that this designation  is                                                            
the first  in Alaska  by the USFWS.   Because  of the lawsuits,  the                                                            
USFWS is  changing the way  it does business  in regard to  critical                                                            
habitat.                                                                                                                        
                                                                                                                                
CHAIRMAN HALFORD  asked Mr. Hannon to specify what  this designation                                                            
will  mean  in regard  to  open  federal  land,  federal land  in  a                                                            
restricted  category, state  tidal  and submerged  lands, and  other                                                            
state and private  lands.  He pointed out that the  designation will                                                            
obviously  not have  as  much of  an impact  on a  federal  wildlife                                                            
refuge as it will on private land.                                                                                              
                                                                                                                                
MR.  HANNON  agreed.    He  explained  that  the  critical   habitat                                                            
designation does not create  a park, a preserve or a refuge. It does                                                            
not  change  or  limit  the  rights  of  private  citizens,   Native                                                            
landowners or  the State of Alaska.  The designation  does not allow                                                            
the federal  government to access  any of these lands without  prior                                                            
approval.   The  designation  emphasizes  that all  species  require                                                            
healthy habitats  upon which  to live and  that they cannot  survive                                                            
without  it.   The only  regulatory  impact  of a  critical  habitat                                                            
designation  is that federal  agencies must  ensure when they  fund,                                                            
undertake,  or authorize  an activity within  a designated  critical                                                            
habitat  that  the project  does  not destroy  or  adversely  modify                                                            
critical  habitat  or  that  the project  does  not  jeopardize  the                                                            
continued existence of a listed species.                                                                                        
                                                                                                                                
MR.  HANNON clarified  that  the designation  of  the steller's  and                                                            
spectacled  eiders' critical  habitat means  that the U.S.  Corps of                                                            
Engineers, the  U.S. Forest Service, the Bureau of  Land Management,                                                            
or any other federal agency  that undertakes or authorizes a project                                                            
within the habitat must  consider how the action will affect the two                                                            
species.   It does  not mean that  the project  must stop, it  means                                                            
that,  under  Section  7 of  the  ESA,  the USFWS  must  review  the                                                            
projects  and their impacts.   The USFWS  will make a determination                                                             
about  whether   those  projects   will  jeopardize  the   continued                                                            
existence of the listed species.                                                                                                
                                                                                                                                
MR.  HANNON pointed  out  that since  these  two species  have  been                                                            
listed, the USFWS has reviewed  about 100 projects that might impact                                                            
either the  steller's or  spectacled eiders.   The USFWS found  that                                                            
the impact  of the   projects  did not  rise to a  level that  would                                                            
jeopardize  the two species.  Even  without designation of  critical                                                            
habitat, the USFWS  has the affirmative responsibility  to make sure                                                            
that projects do not jeopardize  species.  This designation will not                                                            
result in additional  layers of protection  placed on federal  land.                                                            
If the  USFWS undertakes  an activity  on the  Yukon Delta  National                                                            
Wildlife  Refuge,  it will  have to  consider  the impacts  of  that                                                            
activity on the  two eider species.  It will also  have to determine                                                            
whether  the activity  will  compromise the  species'  habitat to  a                                                            
point  where the species  will  no longer  be able to  use it.   For                                                            
example,  the  private landowner  who  is  planning an  activity  on                                                            
private land will  not need a permit from the federal  government if                                                            
no federal  money is  involved. But,  under current  law, a  private                                                            
landowner who  is planning a housing project in Barrow  with federal                                                            
funding has  to consider  the impact on the  species because  it was                                                            
listed as threatened under  the ESA. A USFWS determination will have                                                            
to be made as to whether  or not that housing project will adversely                                                            
modify or render  the entire critical  habitat area unusable  by the                                                            
two species.  The USFWS  does not believe it is likely that it would                                                            
determine  that  the  use  of  those  five  acres  will  destroy  or                                                            
compromise an entire critical habitat area.                                                                                     
                                                                                                                                
Number 1440                                                                                                                     
                                                                                                                                
SENATOR  TAYLOR asked  if the  USFWS has  to take  into account  the                                                            
cumulative effect.                                                                                                              
                                                                                                                                
MR. HANNON  said yes, but  the USFWS has to  do that anyway  because                                                            
the species is  listed.  In the 200 times the USFWS  has had to make                                                            
such determinations, it  has never determined that an activity would                                                            
jeopardize a species.                                                                                                           
                                                                                                                                
SENATOR TAYLOR  asked Mr. Hannon to discuss the impacts  of drilling                                                            
on the National Petroleum Reserve.                                                                                              
                                                                                                                                
MR. HANNON explained that  first the USFWS would have to look at the                                                            
direct and  indirect effects of the  infrastructure associated  with                                                            
the installation  of the drilling pad on the ducks.   The USFWS must                                                            
look  at the  species and  its  habitat because  the  two cannot  be                                                            
separated.   The USFWS has  reviewed several  projects on the  North                                                            
Slope  and determined  that  the impacts  would not  jeopardize  the                                                            
species.                                                                                                                        
                                                                                                                                
MR.  HANNON  informed committee  members  that  the  USFWS's  public                                                            
comment period was originally  scheduled to close at the end of May,                                                            
but  two entities  have  requested an  extension.   As  a result,  a                                                            
notice that  the comment period will  be extended to June  30 should                                                            
be published in the Federal  Register next week.  The USFWS has held                                                            
meetings in Toksook Bay,  Chevak, Barrow, and Nome and meetings have                                                            
been requested  by five communities  on the North Slope,  which will                                                            
be scheduled.   If  other communities  request  hearings, the  USFWS                                                            
will accommodate  as many as possible.  During this  comment period,                                                            
the USFWS is  looking for information  about the duck, its  habitat,                                                            
and the  species' distribution  that can be  considered.  The  USFWS                                                            
has not had many dealings  with critical habitat in Alaska, nor have                                                            
many other people.  There  is a misconception that this is a federal                                                            
lockup of  land - that is  not the case.   Most of the prohibitions                                                             
that  come under  the  ESA  are precipitated  by  the  listing of  a                                                            
species.  The  analysis for looking  at whether critical  habitat is                                                            
adversely  modified  or  destroyed  is  really  duplicative  of  the                                                            
analysis  that must occur  anyway to determine  whether an  activity                                                            
will jeopardize the species.                                                                                                    
                                                                                                                                
CHAIRMAN  HALFORD  asked what  the  primary  causes of  the  natural                                                            
mortality  of  the  two species  are.    He clarified  that  he  was                                                            
speaking about  mortality on a year-to-year  basis rather  than over                                                            
the long term.                                                                                                                  
                                                                                                                                
MR. HANNON answered  in the past both species were  hunted for sport                                                            
and subsistence.                                                                                                                
                                                                                                                                
CHAIRMAN HALFORD asked if they are still being hunted.                                                                          
                                                                                                                                
MR. HANNON replied not since 1991.                                                                                              
                                                                                                                                
CHAIRMAN HALFORD asked if any eggs are taken.                                                                                   
                                                                                                                                
MR. HANNON said  the USFWS believes that some egg  take is going on,                                                            
but for the  most part the USFWS is  getting tremendous cooperation                                                             
from the Native villages and people are not taking the eggs.                                                                    
                                                                                                                                
CHAIRMAN HALFORD  asked what is causing the mortality  on a year-to-                                                            
year basis.                                                                                                                     
                                                                                                                                
MR.  HANNON answered  it is  from  predation, weather  and  climatic                                                            
factors, and a whole host  of things that can affect the survival of                                                            
all waterfowl.                                                                                                                  
                                                                                                                                
CHAIRMAN  HALFORD asked  whether the  USFWS is sure  that all  other                                                            
factors are  under maximum positive  control before it applies  this                                                            
rule, which says that 30 acres must be set aside for every nest.                                                                
                                                                                                                                
MR. HANNON said he did not understand.                                                                                          
                                                                                                                                
CHAIRMAN  HALFORD said  he calculated  a radius of  656 feet  so the                                                            
area would  equal 30.07  acres per  nest.  He  said he is  concerned                                                            
that the USFWS has done  everything else in terms of limiting damage                                                            
to the species before it sets aside that land.                                                                                  
                                                                                                                                
MR.  HANNON said  that  the USFWS  identified  some  causes for  the                                                            
decline of  both species when they  were listed.    With  respect to                                                            
the spectacled  eider, the USFWS identified a 96 percent  decline in                                                            
the Y-K Delta  population from the  1970's to the 1990's  based upon                                                            
waterfowl surveys.                                                                                                              
                                                                                                                                
CHAIRMAN HALFORD  asked if any recovery  has occurred since  the two                                                            
species were listed.                                                                                                            
                                                                                                                                
MR. HANNON stated he is  not sure whether the USFWS has seen much of                                                            
an increase at all.                                                                                                             
                                                                                                                                
SENATOR TAYLOR referred to the USFWS briefing paper and read,                                                                   
                                                                                                                                
     Between  the '70s and the '90s,  spectacled eiders on  the                                                                 
     Y-K  Delta declined by  96 percent,  from 48,000 pairs  to                                                                 
     fewer  than  2,500 pairs  in  1992.   Based  upon surveys                                                                  
     conducted  during  the  past  few  years,  the  Y-K  Delta                                                                 
     breeding population is estimated  to be about 4,000 pairs.                                                                 
                                                                                                                                
He said that  amounts to almost a  100 percent increase in  the last                                                            
eight years.                                                                                                                    
                                                                                                                                
MR. HANNON agreed it has increased.                                                                                             
                                                                                                                                
SENATOR  TAYLOR  continued  to read,  "The  most  recent  population                                                            
estimate on the North Slope  is currently 9,488 (plus or minus 1,814                                                            
birds).  North Slope eiders have no clear population trend."                                                                    
                                                                                                                                
MR. HANNON explained the  USFWS does not have the same baseline data                                                            
for the North Slope.                                                                                                            
                                                                                                                                
SENATOR  TAYLOR  indicated  the  trend  on  the Y-K  Delta  shows  a                                                            
dramatic increase.  He  asked what a normal rate of increase on that                                                            
population would be.                                                                                                            
                                                                                                                                
MR. HANNON was not sure.                                                                                                        
                                                                                                                                
Number 1790                                                                                                                     
                                                                                                                                
SENATOR  TAYLOR  surmised  that the  USFWS  did  not know  what  the                                                            
populations were 30, 50, or 100 years ago.                                                                                      
                                                                                                                                
MR. HANNON  said that is  correct and explained  that the USFWS  has                                                            
anecdotal  information  that suggests  that both  species were  much                                                            
more common than  they are today.  He noted there  is no data to say                                                            
there has been  a 20 or 50 percent decline or increase  on the North                                                            
Slope.                                                                                                                          
                                                                                                                                
CHAIRMAN  HALFORD asked if  these species  are protected  throughout                                                            
the entire system.                                                                                                              
                                                                                                                                
MR. HANNON said they are.                                                                                                       
                                                                                                                                
SENATOR TAYLOR  pointed out they are only protected  on a section of                                                            
Alaska and  that their larger current  breeding range is  in Russia.                                                            
He asked what  is being done to stop  the Russians from hurting  the                                                            
eiders.                                                                                                                         
                                                                                                                                
MR. HANNON  replied  the spectacled  eider is  listed as  threatened                                                            
throughout  its range,  which  means wherever  it  exists, and  that                                                            
includes Russia.   Data on the Russian population  shows it has been                                                            
very stable to  increasing.  With the break-up of  the Soviet Union,                                                            
the USFWS has received  reports about increased hunting, so it is in                                                            
the process  of trying  to find out  to what  extent the eiders  are                                                            
being  hunted.   In the  case  of the  steller's eider,  the  Alaska                                                            
population is the only population listed under the ESA.                                                                         
                                                                                                                                
SENATOR TAYLOR asked how large that population is.                                                                              
                                                                                                                                
MR. HANNON said it is fairly large.                                                                                             
                                                                                                                                
SENATOR  TAYLOR  noted  about  three-quarters   of  the  snow  goose                                                            
population  that travels down the  West Coast flyway actually  nests                                                            
in islands in  Russia, such as Wrangell Island.  He  noted that when                                                            
the Russians  put  cows on  that island,  the foxes  decimated  that                                                            
population.  He asked if snow geese are listed as endangered.                                                                   
                                                                                                                                
MR. HANNON offered to find out.                                                                                                 
                                                                                                                                
SENATOR TAYLOR  noted that the briefing  paper contains assumptions                                                             
about predation  and other causes for population loss,  such as lead                                                            
poisoning caused  by eiders eating  lead shot, which was  documented                                                            
on the Y-K  Delta.  He  said he finds it  hard to believe  the USFWS                                                            
found  many  of those  cases  because  it would  take  thousands  of                                                            
hunters to shoot enough shot for 9,000 birds to find.                                                                           
                                                                                                                                
MR. HANNON clarified that  it is illegal to hunt with lead shot.  He                                                            
noted it  was used for many  years to hunt  waterfowl and that  lead                                                            
shot gets deposited  in the wetlands.   Many wetlands in  Alaska are                                                            
underlaid  by permafrost so  the lead does  not sink and remains  in                                                            
the zone where the ducks  can ingest it.  In studies done on the Y-K                                                            
Delta,  the USFWS  found that  up to  60 percent  of ducklings  have                                                            
elevated  levels  of lead  in their  blood.   He repeated  that  the                                                            
decision to list these  birds was made some time ago.  That decision                                                            
is not being revisited  now; the issue is whether and which critical                                                            
habitat  is  appropriate  to conserve  these  birds.   There  is  no                                                            
smoking gun  that can explain why  these populations have  declined.                                                            
The USFWS believes  lead shot is a possibility as  well as increased                                                            
predation because  as some of the  goose populations have  declined,                                                            
the predators  are moving and looking  at other prey to eat.   Also,                                                            
the waste management  practices in some of the communities  in these                                                            
areas  allow a  larger  number of  species  to survive  through  the                                                            
winter, which  results in increased  predation.  Global warming  and                                                            
climate change  may be affecting these  species. The USFWS  plans to                                                            
do the best  it can to  recover the species,  but it cannot  control                                                            
all the variables.   He believes that if he were to  be invited back                                                            
to speak  to the  committee  three years  from now  about what  this                                                            
designation  has done, he would have  to say the USFWS has  found no                                                            
perceptible change.  The  USFWS will continue to do business the way                                                            
it always  has, and the  determination of  whether or not an  action                                                            
will jeopardize  a species will continue  to be made.  If  the USFWS                                                            
finds that a project  will jeopardize the species,  it will probably                                                            
also find that  the project will affect the habitat  as well.  Right                                                            
now this is new to the  USFWS.  The allegation that this designation                                                            
is a federal land grab is not true.                                                                                             
                                                                                                                                
Number 2101                                                                                                                     
                                                                                                                                
SENATOR TAYLOR asked why  the USFWS did not let the lawsuit filed by                                                            
Christians Caring for Creation go to court.                                                                                     
                                                                                                                                
MR. HANNON replied  the USFWS has been sued on many  occasions about                                                            
critical habitat.   The USFWS determined,  at the time most  species                                                            
were listed, that it was  not prudent to designate critical habitat.                                                            
It has been  through many similar  lawsuits and, in every  case, the                                                            
USFWS  lost and  was ordered  by the  courts to  designate  critical                                                            
habitat. The  USFWS counsel advised  against fighting this  case, so                                                            
the USFWS settled out of court.                                                                                                 
                                                                                                                                
SENATOR TAYLOR asked whether  an additional level of permitting will                                                            
have to be accomplished if this designation occurs.                                                                             
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
MR. HANNON said it will  not.  He explained that when an activity is                                                            
going  to   be  undertaken  that   involves  a  federal   agency,  a                                                            
determination  is made as  to whether the  activity will affect  the                                                            
listed species  or its designated  critical habitat.  The  result of                                                            
that  deliberation  is a  document called  a  "biological  opinion."                                                            
That biological opinion  must conclude whether or not it is going to                                                            
jeopardize  the listed species.   With the  designation of  critical                                                            
habitat,  a  second  decision   must  be  made:  will  the  activity                                                            
adversely modify  or destroy critical habitat?  Those  two decisions                                                            
are made in  the same document and  there is no additional  time for                                                            
processing  a permit or undertaking  this analysis.  It is  all done                                                            
simultaneously.                                                                                                                 
                                                                                                                                
SENATOR TAYLOR  asked how  the farmer who  was plowing his  field in                                                            
California that is critical  habitat for the kangaroo rat got thrown                                                            
in jail.                                                                                                                        
                                                                                                                                
MR. HANNON  replied that case made  national news but he  is not 100                                                            
percent familiar  with it.  He noted  that often the media  does not                                                            
tell the whole  story.  He thought  it had more to do with  the fact                                                            
that species were  being taken as a result of that  activity and not                                                            
because it was a critical  habitat area. He offered to get the facts                                                            
for Senator Taylor.                                                                                                             
                                                                                                                                
SENATOR  TAYLOR asked  Mr. Hannon  to do  that and  said he is  also                                                            
aware of  a man in Louisiana  who was thrown  in jail for  putting a                                                            
levy  back  into place  on  his farm  after  a  flood.   His  family                                                            
homesteaded  the land for a few years,  but it was then declared  to                                                            
be wetlands.  He commented that,                                                                                                
                                                                                                                                
     It's examples  like that - and  I could waste the rest  of                                                                 
     the  afternoon  and  the  evening  giving  you  anecdotal                                                                  
     comments on  what I've experienced this year in  Alaska on                                                                 
     critical  habitat for eel grass,  for God's sake - on  the                                                                 
     largest coastline in the  North American continent - we're                                                                 
     sitting on  top of it and the eel grass is very  sensitive                                                                 
     to folks like you and they  worry about that a lot and so,                                                                 
     as a consequence,  I've watched  one construction project                                                                  
     after  another  either  get tied  up,  get screwed  up  or                                                                 
     somebody  has to  go buy  off a  federal bureaucrat  or  a                                                                 
     state  one by  paying  off to  go to  some other  area  to                                                                 
     enhance that  area because somebody decided that  the aura                                                                 
     of this particular place has now been disrupted.                                                                           
                                                                                                                                
     If you  don't think  we're paranoid when  it comes to  you                                                                 
     people  up  here,  you're crazy.  We  have  been fighting                                                                  
     nobody  but the - what I refer  to as 'eco-bigots' in  the                                                                 
     federal government  who come up here and want  to sanction                                                                 
     this  and sanction  that.  As  a consequence,  to say  the                                                                 
     least, we're  paranoid but, you know, even paranoids  have                                                                 
     enemies and we know who ours are.                                                                                          
                                                                                                                                
SENATOR GREEN  remarked that when  she started reading the  briefing                                                            
paper,  she recalled  reading  the book  "Undue  Influence:  Wealthy                                                            
Foundations,   Grant-Driven   Environmental   Groups,  and   Zealous                                                            
Bureaucrats that  Control Your Future".  She recognized  the name of                                                            
the Southwest  Center for Biological  Diversity and its long  thread                                                            
of rage against nearly  every state in the Southwest.  The group has                                                            
ties back to a  group named Earth Firsters who were  the forerunners                                                            
of the  terrorists and  who were  funded by the  Pew Foundation  and                                                            
some of the  charitable trusts.  These  groups make claims  in court                                                            
that government agencies are not implementing the laws properly.                                                                
                                                                                                                                
TAPE 00-42, SIDE B                                                                                                              
                                                                                                                                
SENATOR GREEN commented,                                                                                                        
                                                                                                                                
     And I had  to go get this book to read it, because  I want                                                                 
     this to  be part of the record.   And it goes back to  the                                                                 
     spotted  owl  controversy  in the  Southwest -  then  into                                                                 
     California  -  then Pew  is also  involved in  the nearly                                                                  
     $600,000 investment in the  Alaska Conservation Foundation                                                                 
     and  the Alaska  Coastal Rainforest,  which  I know  Robin                                                                 
     will  be interested in.   It killed  two long term timber                                                                  
     contracts  that  the U.S.  government  had begged  for  to                                                                 
     stabilize  the  economy there  and then  it  went on  into                                                                 
     Arizona,   up  the  West  Coast,   and  then  -  but   the                                                                 
     interesting thing is the  restraining order was granted by                                                                 
     U.S. District  Judge Paul Rosenblatt  - were also brought                                                                  
     by  environmentalists   Peter  Galvin  of    New  Mexico.                                                                  
     Interestingly  enough, Galvin is another one of  the Earth                                                                 
     Firsters  arrested and charged  with felony and fined  and                                                                 
     then the judge  let him off for $1 bail. But,  this is the                                                                 
     same  guy  who's  now  doing  the  Southwest   Center  for                                                                 
     Biological  Diversity and I cannot  find the cite for  the                                                                 
     Christians Caring for Creation  or I would also read that,                                                                 
     but  there  are  two other  Christian,  quote,  community                                                                  
     organizations  mentioned  in here,  which -  as little  as                                                                 
     I've read  about this, because I can't stand it  because I                                                                 
     can't  take enough blood pressure  medicine to keep  it in                                                                 
     control, are  inextricably woven and again, funded  by the                                                                 
     same  people  sitting  in either  New  York,  Boston,  San                                                                 
     Francisco or Seattle doling  out money to organizations in                                                                 
     every state to bring lawsuits  against you. So I want that                                                                 
     to be part of the record  because it really ticks me off."                                                                 
                                                                                                                                
MR.  HANNON  responded  that  the  USFWS  does  not  relish  listing                                                            
species.                                                                                                                        
                                                                                                                                
SENATOR GREEN  noted that Mr. Hannon  does not have to apologize  to                                                            
her on this issue.   She said she agrees that the  USFWS is besieged                                                            
by people filing lawsuits  and that judges in courts will not uphold                                                            
the  USFWS's  decisions.    She added  the  lawsuits  are  filed  by                                                            
environmental  groups  who are  funded by  wealthy  people who  have                                                            
already  made  their  money and  sit  on  it and  fund  every  local                                                            
environmental organization in the State of Alaska.                                                                              
                                                                                                                                
CHAIRMAN HALFORD asked  whether the USFWS is negotiating to purchase                                                            
any of the  land in the habitat area  in an effort to protect  these                                                            
species.                                                                                                                        
                                                                                                                                
MR. HANNON said he is not  aware of any land acquisition program for                                                            
the  two species.    He  said the  USFWS  did  a breakdown  of  land                                                            
ownership within the proposed  critical habitat areas and offered to                                                            
send  the  committee  copies.    Mr.  Hannon   noted  that  a  large                                                            
percentage  of the terrestrial  landscape,  both on the North  Slope                                                            
and on the Y-K Delta, is in some form of federal ownership.                                                                     
                                                                                                                                
CHAIRMAN  HALFORD  thanked  Mr.  Hannon  for  his  presentation  and                                                            
testimony.                                                                                                                      
                                                                                                                                
MR. KEN  FREEMAN,  Executive Director  of the  Resource Development                                                             
Council  (RDC),  made the  following  comments.   The  RDC  strongly                                                            
supports HJR 60.  The USFWS  concedes that neither the spectacled or                                                            
steller's  eiders are habitat  limited in  Alaska.  These  waterfowl                                                            
have not suffered  due to a shortage of suitable habitat,  therefore                                                            
the sheer  size of the  proposed designation  is a serious  cause of                                                            
concern for RDC members.   The USFWS's stated reason for designating                                                            
critical habitat  for these two species is an order  to respond to a                                                            
lawsuit filed by two environmental  organizations.  A designation of                                                            
this magnitude  should  be based on  sound science  and not  a legal                                                            
compromise.  The  protections afforded species listed  under the ESA                                                            
are substantial.   Because the spectacled  and steller's  eiders are                                                            
not  habitat  limited,  the designation  of  critical  habitat  does                                                            
little to  significantly  increase their protection  under  the ESA.                                                            
Critical habitat can be  used as a tool to slow economic development                                                            
by   individuals   or  organizations   interested   in   acting   as                                                            
obstructionists.   A few weeks ago,  Greenpeace and the Sierra  Club                                                            
asked a federal  judge in Seattle to ban the harvest  of pollock and                                                            
other bottomfish  in  areas throughout  the Bering  Sea and Gulf  of                                                            
Alaska  where  critical  habitat  for stellar  sea  lions  has  been                                                            
designated.   This is exactly  the type of  situation the RDC  would                                                            
like  to avoid  on  the North  Slope  and in  western  Alaska.   RDC                                                            
members  are committed to  the responsible  development of  Alaska's                                                            
natural resources.  They  believe the protections provided through a                                                            
threatened  listing  are enough  to safeguard  the  welfare of  both                                                            
species.  The designation  of more than 80 million acres of critical                                                            
habitat goes too far.  He offered to answer questions.                                                                          
                                                                                                                                
MR.  WAYNE   REGELIN,   director   of  the  Division   of   Wildlife                                                            
Conservation,  ADFG,  stated support  for HJR  60.   ADFG is in  the                                                            
process  of  preparing  official  comments   opposing  the  proposed                                                            
designation.   ADFG agreed with the USFWS in 1997  when it concluded                                                            
that no conservation  benefit would  accrue from the designation  of                                                            
critical  habitat  for  either  species  of  eider.    There  is  no                                                            
scientific  basis for  the ADFG or  USFWS to  change that  position.                                                            
The only thing  that has changed is  lawsuits and a mediation  order                                                            
that requires  the USFWS to reconsider  the designation of  critical                                                            
habitat.                                                                                                                        
                                                                                                                                
ADFG believes  designating millions  of acres of Alaska as  critical                                                            
habitat  is not biologically  defensible.   Information  about  what                                                            
might be critical  habitat is lacking  but that lack of information                                                             
does not justify locking  up areas where eiders may never have gone.                                                            
Eiders are not a common  species and they never have been.  There is                                                            
no conclusive  evidence the populations  have been any smaller  than                                                            
they ever were  in Alaska.  Most of the populations  breed in Russia                                                            
and come to  Alaska periodically,  for the most part staying  off of                                                            
the coast.                                                                                                                      
                                                                                                                                
The spectacled  eider population has  declined in the Y-K  Delta but                                                            
it appears  to be recovering.   There is no  indication it  has ever                                                            
declined anywhere  else.  The only places in Alaska  where steller's                                                            
eiders occur  on a regular basis in  substantial numbers  are in the                                                            
Izembek  and  Nelson  Lagoons  during  the  molt.   It  is  probably                                                            
reasonable  to consider those two  small areas for critical  habitat                                                            
designation.   ADFG believes all of the other areas,  especially the                                                            
North Slope,  should be withdrawn.   The spectacled eiders  occur in                                                            
sizable numbers in Norton  Sound and Ledyard Bay during the molt and                                                            
in the  winter they  raft in large  groups of up  to 80,000,  in the                                                            
Bering Sea between St. Lawrence and St. Matthews Islands.                                                                       
                                                                                                                                
MR. REGELIN  suggested those areas  also be considered for  critical                                                            
habitat but  he was not sure  how a designation  would occur  in the                                                            
middle of  the ocean.   ADFG feels strongly  that designating  large                                                            
parts of Alaska will have  a significant economic impact.  The USFWS                                                            
will  have to  do  Section 7  consultations  for  every development                                                             
project on federal  lands in this huge area across  the North Slope,                                                            
much of it NPRA.  The consultations  could cause delays.  What is of                                                            
concern to ADFG is that  if the USFWS makes a determination that the                                                            
proposed action  does not jeopardize  the eiders, the USFWS  will be                                                            
taken to court.  When it  goes to court, the judge is likely to take                                                            
into great consideration  the idea that the area has been designated                                                            
as critical  habitat.  HJR 60 may  help the USFWS to designate  only                                                            
areas where it knows what  birds have existed in reasonable numbers.                                                            
                                                                                                                                
SENATOR  TAYLOR  asked  how  sending  the  resolution   to  Alaska's                                                            
congressional delegation will affect what the USFWS will do.                                                                    
                                                                                                                                
MR. REGELIN  explained that  the USFWS has  proposed a federal  rule                                                            
with all  of these areas.   It has an open  comment period  underway                                                            
and it will be  extended until June 30.  Once the  comment period is                                                            
over, the USFWS will finalize  actions; Congress does not have to do                                                            
anything.                                                                                                                       
                                                                                                                                
SENATOR TAYLOR said it  seems to him that HJR 60 will be sent to the                                                            
wrong  people -  it should  be  sent to  the USFWS  as  part of  the                                                            
comments.                                                                                                                       
                                                                                                                                
MR. REGELIN said he did not write the resolution.                                                                               
                                                                                                                                
Number 1863                                                                                                                     
                                                                                                                                
SENATOR LINCOLN  noted the resolution contains a clause  that speaks                                                            
to pursuing legal action  once the regulations are adopted and asked                                                            
about the timing.   Second, she pointed out she has  no objection to                                                            
HJR 60, but she  questioned whether a fiscal note  has been included                                                            
if the Legislature  is asking the  Governor to pursue legal  action.                                                            
                                                                                                                                
CHAIRMAN HALFORD  said he did not think the resolution  has a fiscal                                                            
note.                                                                                                                           
                                                                                                                                
SENATOR LINCOLN pointed out it has a zero fiscal note.                                                                          
                                                                                                                                
MR. REGELIN  commented  that the  USFWS would  be able  to tell  the                                                            
committee when  the public comment period will become  final, but he                                                            
is still hopeful  that the USFWS will change its mind  after hearing                                                            
ADFG's comments.   If it does not, ADFG will probably  look at other                                                            
alternatives.   He believes  the USFWS  proposal  will have a  great                                                            
economic impact  on federal lands outside of refuges  and on private                                                            
lands.  The  ESA requires that an  economic analysis be done  before                                                            
the USFWS  can designate  critical habitat  areas and that  analysis                                                            
has not been  done yet.  He said he  is not sure if that  is why the                                                            
process has been delayed until June 30.                                                                                         
                                                                                                                                
There  being no  questions,  CHAIRMAN  HALFORD  took teleconference                                                             
testimony.                                                                                                                      
                                                                                                                                
MS. MARILYN  CROCKETT, Assistant  Executive  Director of the  Alaska                                                            
Oil and Gas Association  (AOGA), made the following comments.  There                                                            
are  a number  of  activities  talked  about  today,  which  provide                                                            
extensive protection  for the eiders in the absence  of the critical                                                            
habitat  designation.     First,  the  private  industry   has  done                                                            
extensive   research  and   surveys  on  its   own  part  prior   to                                                            
development, especially  on the North Slope.  Second,  the Section 7                                                            
consultation  does  provide  a level  of  protection and  answers  a                                                            
number  of questions  with regard  to protection  of species.   With                                                            
regard to the  NPRA area, the environmental  impact statement  (EIS)                                                            
for  NPRA  designated  over  1,000,000  acres  in  the  vicinity  of                                                            
Teshekpuk  Lake  as  a spectacled  eider  breeding  range  land  use                                                            
emphasis  area.  The EIS  also includes 79  stipulations to  address                                                            
and  minimize   the  impacts   of  activities   within  that   area.                                                            
Furthermore,  from  the  State  of  Alaska's  standpoint,  the  best                                                            
interest findings for lease  sales also contain similar stipulations                                                            
and mitigating measures.   A whole stack of additional eider habitat                                                            
protection   mechanisms   are  currently   in   place  without   the                                                            
designation of critical  habitat.  Given all of those factors, it is                                                            
questionable  what  the  value   would  be  of  a critical   habitat                                                            
designation.                                                                                                                    
                                                                                                                                
MS. CROCKETT  said AOGA is particularly  concerned about  two areas.                                                            
One, mentioned  by Mr. Regelin,  is that the  USFWS has stated  that                                                            
the  designation  of  critical  habitat  will have  much  impact  on                                                            
permitting activities  however there is no doubt that  the regulated                                                            
community is  just as concerned over  the potential for third  party                                                            
lawsuits  when  agencies   appropriately  issue  permits   within  a                                                            
critical  habitat area.    Finally, the  USFWS has  stated  numerous                                                            
times  that  it  does not  believe  there  will  be  any  additional                                                            
prohibitions  as  a result  of this  critical  habitat designation.                                                             
Over  the  last  several  weeks, AOGA  has  found  there  were  many                                                            
permitting  programs  in place  by agencies  other  than USFWS  that                                                            
typically  prohibit permitting  of  activities  in critical  habitat                                                            
areas.   These prohibitions  are sometimes  the result of  statutory                                                            
prohibitions,  sometimes they are  included in program regulations,                                                             
and  sometimes  they  are simply  agency  policy.    These  outright                                                            
prohibitions  are absent the  Section 7 consultations.   One  recent                                                            
example  is the new  Corps of  Engineers nationwide  general  permit                                                            
program,  which  prohibits  the use  of these  permits  in  critical                                                            
habitat areas.                                                                                                                  
                                                                                                                                
SENATOR  TAYLOR asked  what portion  of NPRA is  set aside today  as                                                            
critical habitat for summer  nesting areas for a different waterfowl                                                            
species,  which prevented  the oil industry  from drilling  in those                                                            
areas.                                                                                                                          
                                                                                                                                
MS. CROCKETT  said she did not know  but numerous areas within  NPRA                                                            
have been  designated  as critical  habitat for  both steller's  and                                                            
spectacled  eiders.    She  repeated  the  one  designation  she  is                                                            
familiar  with is  the 1,000,000  acres  within the  Teshekpuk  Lake                                                            
area.                                                                                                                           
                                                                                                                                
SENATOR TAYLOR asked if  the Teshekpuk Lake critical habitat area is                                                            
for spectacled eiders.                                                                                                          
                                                                                                                                
MS. CROCKETT said it is.                                                                                                        
                                                                                                                                
SENATOR TAYLOR said Mr.  Regelin thought it was for brant geese.  He                                                            
thought it might be a joint nesting area.                                                                                       
                                                                                                                                
Number 1572                                                                                                                     
                                                                                                                                
MR. KEN TAYLOR, Director  of the Habitat and Restoration Division of                                                            
ADF&G, said if  he could find any benefit in this  proposed critical                                                            
habitat  area  he  would  be testifying  in  support  of  the  USFWS                                                            
decision but  he believes it will  not be beneficial and  it will be                                                            
detrimental  for  the  reasons  Ms. Crockett  testified  to.    This                                                            
affects  more  than  just federal  lands;  it  affects  all  federal                                                            
permits for  activities on federal,  state, or private lands.   This                                                            
will result in the public's  ability to file suit not only under the                                                            
ESA, in  which the plaintiff  would have to  prove that use  of five                                                            
acres  is affecting  an  entire habitat  area,  but  also under  the                                                            
critical  habitat status,  which  says that  the five  acre pad  has                                                            
affected five acres of  critical habitat, which will be much easier.                                                            
Those lawsuits  involve a  lot of ADF&G staff  time and he  does not                                                            
want his staff  chasing frivolous  lawsuits at the expense  of good,                                                            
sound conservation practices.                                                                                                   
                                                                                                                                
Number 1418                                                                                                                     
                                                                                                                                
SENATOR  TAYLOR, acting  as Chair,  announced there  was no  further                                                            
testimony and  that as soon as a quorum  was present, the  committee                                                            
would take action on HJR 60.                                                                                                    
                                                                                                                                
SENATOR LINCOLN  asked Mr. Hannon to explain how he  sees this issue                                                            
panning out between now and when the decision is made.                                                                          
                                                                                                                                
MR.  HANNON explained  that  the  final decision  according  to  the                                                            
settlement  agreement will have to  be made on spectacled  eiders by                                                            
December  1 of this year  and for steller's  eiders by January  5 of                                                            
2001.   That  is when  the USFWS  has committed  to  making a  final                                                            
decision.   As  stated  earlier,  the USFWS  is  in the  process  of                                                            
extending the comment period  through June 30.  Public hearings will                                                            
be held  as requested.   The  USFWS is  required to  do an  economic                                                            
analysis  as to what economic  effects the  designation of  critical                                                            
habitat will have incrementally.   Once it is developed, a notice of                                                            
availability  will  be published  in the  federal  register and  the                                                            
public  will  have  30  days  to  comment.  Once  all  comments  are                                                            
received, the  USFWS will do an analysis of that information  and it                                                            
will make a final determination by the dates mentioned.                                                                         
                                                                                                                                
SENATOR  LINCOLN  asked  whether  the  USFWS  is  accepting  written                                                            
comments  from the  public or  whether  it is taking  comments  from                                                            
people who reside in the area.                                                                                                  
                                                                                                                                
MR. HANNON  said  the USFWS  will accept  any comments,  written  or                                                            
oral.  So far,  five communities on  the North Slope have  requested                                                            
public meetings.   The USFWS is in  the process of working  with the                                                            
communities  to identify  suitable dates.   The  USFWS is trying  to                                                            
schedule the meeting  outside of the whaling season.   Up until now,                                                            
no other communities  in the State  have asked for a public  hearing                                                            
but the USFWS is open to doing so.                                                                                              
                                                                                                                                
SENATOR  TAYLOR  moved to  conceptually  amend  HJR 60  as  follows:                                                            
beginning on line 27, following the word "Eider" insert                                                                         
                                                                                                                                
     "and be it  FURTHER RESOLVED that the Alaska  State Legislature                                                            
     urges  the United  States Fish  and Wildlife  Service to  adopt                                                            
     final  regulations  that create  no  new critical  habitat  for                                                            
     eiders in Alaska."                                                                                                         
                                                                                                                                
There  being no objection,  CHAIRMAN  HALFORD  noted that  amendment                                                            
would be incorporated into the Senate Resources CS.                                                                             
                                                                                                                                
SENATOR LINCOLN said she  was interested in Senator Taylor's comment                                                            
that it may be  a good idea to send copies of the  resolution beyond                                                            
the  list of  Alaska's  congressional  delegation.    She  suggested                                                            
amending the resolution to add names.                                                                                           
                                                                                                                                
SENATOR TAYLOR  said he assumed a  copy would be sent to  the USFWS.                                                            
                                                                                                                                
CHAIRMAN HALFORD noted  that will be a conforming portion of Senator                                                            
Taylor's original amendment to the CS.                                                                                          
                                                                                                                                
SENATOR TAYLOR moved SCS  HJR 60(RES) from committee with individual                                                            
recommendations.  There being no objection, the motion carried.                                                                 
                                                                                                                                
There  being no  further  business  to come  before  the  committee,                                                            
CHAIRMAN HALFORD adjourned the meeting at 4:45 p.m.                                                                             

Document Name Date/Time Subjects