SB 60-BOUNTY ON SEA OTTERS  2:17:18 PM CHAIR COGHILL announced the consideration of SB 60. "An Act relating to sea otter population management." 2:18:01 PM SENATOR BERT STEDMAN, Alaska State Legislature, sponsor of SB 60, described the industrial harvest of sea otters in coastal Alaska in the 18th and 19th century that decimated the sea otter populations. The state attempted to reintroduce the species in 1965-1969 by relocating 402 sea otters to the Southeast region. They became a federally protected species in 1972 when Congress passed the Marine Mammal Protection Act (MMPA) and management was transferred to the U.S. Fish and Wildlife Service. The MMPA made it illegal to harvest sea otters for everyone but coastal Alaska Natives who could do so for subsistence and purposes of making or selling traditional artisanal crafts. SENATOR STEDMAN explained that in 1994 the U.S. Fish and Wildlife Service (USFWS) approved the Conservation Plan for Sea Otters in Alaska. In the preface it says the plan will be reviewed annually and revised every three to five years. Contrary to that directive, the USFWS never revised the plan. Over the last 19 years the sea otter population has increased exponentially and is devastating the shellfish industries on the western coast of Southeast Alaska. 2:21:46 PM SENATOR STEDMAN informed the committee that there are three population stocks of sea otters in Alaska today. The southwest stock ranges from Kodiak to the end of the Aleutian chain; the central stock includes Cook Inlet and Prince William Sound; and the southeast stock ranges from Dixon Entrance to Yakutat. In Southeast, the population has been growing between 12 percent and 14 percent a year. In 2012, the estimated population of sea otters in Southeast Alaska was 25,000, and 842 were harvested by Alaska Natives. According to the USFWS, the potential biological removal of sea otters from Southeast to sustain the optimum population is 2,180 annually. He emphasized that the intent of SB 60 is to slow the growth rate, not eradicate the population. He discussed the seafood diet of the sea otter and the fact that that they consume up to 25 percent of their body weight per day. He calculated that the current population of sea otters in Southeast consumes over 148 million pounds of shellfish annually. For perspective, the Dungeness crab harvest last year was 4.8 million pounds. Current estimates indicate that since 1995, about $22.4 million in wholesale value has been lost from the commercial fisheries due to sea otters. In recent years the Alaska Department of Fish and Game has closed 17 harvest areas due to sea otters. Crab fishermen are trying to get away from sea otters and gear is being concentrated in fewer bays. He also discussed the concerns that arise from trying to follow the complicated MMPA regulations and the stiff penalties. SENATOR STEDMAN explained that SB 60 is intended to encourage a discussion between the federal government and the state to work out an arrangement so that inhabitants can continue to survive in coastal Southeast as they have for thousands of years. 2:28:46 PM CHAIR COGHILL expressed interest in hearing more about the jurisdictional question, U.S. code 16, and the legal challenges associated with no management plans being forwarded under MMPA. SENATOR STEDMAN said the jurisdictional issues were mentioned at the previous committee, but the consensus appeared to be that it was the purview of this committee. SENATOR COGHILL asked Mr. Bell to discuss the sea otter conservation plan in Alaska and the updates. 2:30:32 PM LARRY BELL, Assistant Regional Director, U.S. Fish and Wildlife Service (USFWS), agreed with the sponsor that the management authority comes from the Marine Mammal Protection Act, and the management plan is to preserve and protect. He also confirmed that the strict harvest provisions are limited to qualified, coastal dwelling Alaska Natives for subsistence purposes or for Native crafts and clothing. Other provisions prohibit the sale and take except for the aforementioned exclusionary purposes. He acknowledged that the plan is outdated and highlighted that USFWS has learned a great deal about sea otters since the plan was implemented. Multiple stocks of sea otters have been identified, one of which is listed as threatened under the Endangered Species Act (ESA) and is managed under a recovery plan. The other two stocks are managed through periodic review and stock assessment reports to determine the status of the species throughout their range. Those data are compared to determine growth, stability, or declines in population. Determinations are based on that and whether it comports with the management principles of the MMPA. 2:33:00 PM CHAIR COGHILL asked him to discuss the requirements to review the plan, including the location in the document. MR. BELL explained that there is no requirement in law to have a management plan, but the USFWS is required by law to manage under the MMPA. Although the plan hasn't been revised every five years, the stock assessments that provide the needed data to implement management actions are done every three years. CHAIR COGHILL asked if management is based on area or population and flow. MR. BELL replied that the three stocks are managed separately and within each stock the management is based on the sea otter's range, movement throughout the range, habitat availability, and relative numbers compared to the carrying capacity of the range. CHAIR COGHILL inquired if the MMPA has any management scheme that talks about the decimated resource that the sea otters leave behind as they move from one area to another. MR. BELL said the MMPA doesn't address issues of managing marine mammal stocks according to their beneficial or detrimental effect on other wildlife species. CHAIR COGHILL described that as a gap. MR. BELL pointed out that under the current management regime the qualified user group has no season dates, no license requirements, and no bag limits. The harvest is as liberal as it can be. CHAIR COGHILL asked Mr. Fleener to discuss management practices. 2:37:02 PM CRAIG FLEENER, Deputy Commissioner, Alaska Department of Fish and Game (ADF&G), Anchorage, Alaska, described the physical characteristics of sea otters, which are members of the weasel family. Because they don't have an insulating blubber layer, they require about 25 percent of their body weight in food every day. He said that sea otters are linked to declining populations of crab, sea urchins, clams, mussels, octopus, and other marine invertebrates because those make up a large part of the sea otter diet. This has resulted in fisheries restrictions and closures in Southeast. Dive fisheries are being severely affected by sea otters, including Dungeness crab, red sea urchins, California sea cucumbers, and geoduck clams. Those are valued at about $16 million annually. To a lesser degree sea otters consume shrimp, tanner crab, red king crab, and abalone. He said that the dive fisheries in Craig, Sitka, and Petersburg are likely losing $2 million annually due to sea otter depredation. If the current trajectory continues, those fisheries are not sustainable in Southeast. MR. FLEENER said sea otters are an important element of the Southeast Alaska ecosystem and should be managed under conservation principles, but they should not be protected at the expense of other elements of the ecosystem or the ecosystem itself. Sea otters are having a significant predatory effect on shellfish in Southeast, particularly sea cucumbers and Dungeness crabs. For a number of years ADF&G has been working with a wide variety of people to develop solutions related to sea otter impacts. A number of options have been considered to return Southeast waters to a holistic and more sensible ecosystem-based management approach that manages for sustainable shellfish and sea otter populations. These options include: a federal statutory change to ease the restriction on the sale of hides; returning management authority to the state; legislative amendments that exempt states from the MMPA; exempting sea otters in Southeast from the MMPA; assisting coastal Alaska Natives in developing MMPA authorized co- management plans that focus Alaska Native sea otter harvest in important fishing areas; and working with coastal Alaska Natives with funding applications that assist in revitalizing Southeast cottage industries. ADF&G's long term goals have been to encourage the USFWS to ease federal enforcement on subsistence hunters in Southeast; to work with USFWS to liberalize the federal interpretation of handicraft items to be more responsive to customs and traditions of coastal Alaska Natives; to work with Congress to amend parts of the ESA and MMPA to better reflect the health and abundance of Southeast Alaska sea otter populations; to work closely with Southeast coastal Natives to develop sea otter management plans that are compliant with the MMPA, but encourage increased sea otter harvest; to restore shellfish populations to meet subsistence needs and provide commercial fishing opportunities; to restore the coastal ecosystem; and to seek federal reimbursement to commercial fishermen for lost economic opportunity. MR. FLEENER discussed an unintended consequence if the bill were to go forward as currently written. The USFWS could consider the taking of sea otters in Southeast as financially motivated and not subsistence hunting and disallow it. The agency may also see the bounty as a commercial purpose and remove Native's ability to export those furs. It's also possible that the USFWS could find increased take due to bounties, and close the hunt. Since there is no differentiation between sea otters in Southeast and the endangered sea otters, the state may be found liable for encouraging the harvest of an endangered species. The [bounty] funds flowing through ADF&G could also be a problem because it isn't a coastal Alaska Native organization. He highlighted the possible solutions. The funding could be provided directly to a coastal Alaska Native tribe or tribal entity; exempting the endangered sea otters from the bill to focus only on the Southeast sea otter population; and promote an ongoing close relationship with indigenous co-management entities to implement this program. With regard to the jurisdictional issues, Mr. Fleener said the primary goal of the MMPA is to protect sea mammals, and it's problematic when an act is put in place to permanently protect a species that doesn't need protection. The state needs to address that in the future, he said. 2:45:10 PM CHAIR COGHILL asked how it would work to specify Southeast sea otters. MR. FLEENER suggested that the best mechanism is to work through the existing tribal entities to avoid making any money available for harvesting endangered sea otters. The focus would be directly on the sea otters that are negatively impacting shellfish. CHAIR COGHILL asked if the state is managing fisheries in areas that have been negatively impacted by sea otters. MR. FLEENER said ADF&G manages fisheries in Southeast, but it can't manage the sea otters that are causing the negative impact. It's not the best course of action, but the only management action the department can take on a fishery that is negatively impacted is to close the harvest when numbers are low. 2:48:41 PM SENATOR MCGUIRE referenced the 12/6/12 legal memorandum from Legislative Legal Services, and read the second paragraph as follows: Providing a state bounty for harvested sea otters, even if the sea otters are only taken by those persons permitted to do so under the MMPA, is likely to be interpreted as conflicting with the intention and purposes of the MMPA. She told Mr. Bullard that she respectfully disagrees with the opinion. The bill makes it very clear that the bounty can only be given by ADF&G to those who can make a lawful taking under the MMPA. The people who can lawfully take sea otters are those Alaska Natives who take for subsistence purposes or artisanal purposes. She suggested that saying that providing a bounty incentivizes the taking of sea otters is troubling, but saying the bounty is to offset costs would be valid. She further suggested that it was a legitimate argument that the state was incentivizing lawful takings under the MMPA. ALPHEUS BULLARD, Legislative Counsel, Legislative Legal Services, Legislative Affairs Agency, Juneau, Alaska, acknowledged that all arguments are possible and there may be other opinions. However, the substance of his opinion was that the bill incentivizes taking sea otters, which is inconsistent with protection of sea otters and that is the purpose of the federal act. If the bill becomes law, he believes it will be preempted. SENATOR MCGUIRE asked if it would be more helpful if the sponsor were to clarify that it was lawful takings and that the fee was a reimbursement to offset costs associated with taking for artisan purposes. MR. BULLARD said it could be, but his opinion was restricted to the bill before the committee. SENATOR MCGUIRE suggested that it was consistent with Mr. Fleener's testimony, and that the bill sponsor follow up on that idea at a later time. 2:54:30 PM CHAIR COGHILL said the committee would explore several legal avenues and look at ways to bridge the gap on conflicting jurisdictional issues. He asked the sponsor if he had explored any of the avenues that Mr. Fleener listed. 2:55:28 PM SENATOR STEDMAN said he touched on them lightly but thought it would be more beneficial to bring the issue to the judiciary committee. Referencing the comment by Senator McGuire about offsetting the costs, he suggested that the costs don't necessarily have to be offset at the harvest level. They could readily be at the tannery level or in the area of marketing. He reiterated that there was room to increase the harvest level to several thousand per year. CHAIR COGHILL commented that it may be helpful in the overall protection of the sea otter if the state were to try to keep them from destroying the ecosystem they depend on for their survival. SENATOR MCGUIRE suggested that it may not be possible to take the issue head on in all areas. For example, it may not be possible to convince the federal government that the sea otter is no longer worthy of protection in Southeast Alaska or that the people living in Southeast are worthy of maintaining a livelihood. However, there can be agreement that there is an exception under the MMPA that allows for subsistence hunting by coastal Alaska Natives and the taking of sea otters for artisanal purposes. To that end, she believes it is within the sovereign right of the state to offer the fee. The concern perhaps centers on the use of the term "bounty" because it implies incentive. She suggested the sponsor and committee work with Mr. Fleener to find a win-win solution. 2:59:56 PM CHAIR COGHILL stated his commitment to work with the sponsor. [SB 60 was held in committee.]