SJR 13-AK NATIVE ON PACIFIC SALMON COMMISSION  CHAIRMAN HALFORD announced that the committee would take testimony on a proposed committee substitute (CS) for SJR 13 but, because Senator Ward was called out of town, no action would be taken on the legislation at this time. LORETTA BROWN, aide to Senator Jerry Ward, sponsor of SJR 13, explained that Senator Ward prepared a CS for SJR 13 which makes the following changes. A section was added to page 2, beginning on line 16, which reads: WHEREAS the Magnuson-Stevens Fishery Conservation and Management Act on the status of North Pacific Fisheries Management Council consisting of 11 voting members of which five members shall be appointed by the United States Secretary of Commerce from lists of residents of Alaska submitted by the Governor of Alaska; MS. BROWN informed committee members that several people were waiting to address this section via teleconference. She noted Mr. Malatesta Sr. did some investigative work on this issue. Mr. Malatesta will address the transcripts of his taped phone interviews, copies of which were placed in committee members' packets. MS. BROWN said the other changes made in the CS are on line 16 through 26 on page 2, and on lines 3 through 9 on page 3. SENATOR MACKIE asked if those sections ask the Secretary of Commerce and the Governor to withdraw the appointees. MS. BROWN said that is correct; they request that the nomination process re-occur. CHAIRMAN HALFORD asked Mr. Malatesta to testify. MR. JOE MALATESTA SR. made the following comments. The Magnuson Stevens Fishery Act is very important because it was developed for the United States fishing industry to include bottomfish caught off of the coast of Alaska. Section 302 specifically requires the Governor to first consult with all users of the fisheries resource before making any nominations. Mr. Malatesta said his concern is with the process used by the Governor to conduct the people's business and whether the Governor first consulted users about his nominations. The Governor sent a letter to the Secretary of Commerce dated March 15, 2000 stating that he met the culpability requirements. The letter included a list of the names of 107 people he consulted with. Mr. Malatesta said he contacted five individually named people, five fishing organizations, and the owners or spokespersons of four processing companies on the list. All 14 people that he spoke with told him that they had not been contacted by the Governor or any representative of the Governor's Office regarding the six nominees. MR. MALATESTA repeated that the importance of this matter is that the Governor wrote to the Secretary of Commerce and stated that he did consult with certain individuals. He said no top executive officer of any government may make deceiving or false representations. The response from the Governor's Office is that the Governor has a lot of leeway but he does not. Mr. Malatesta said he is so upset because this Administration has been circumventing the public process for other board appointments, such as the Board of Fisheries. The Magnuson-Stevens Act contains no penalty for this misstatement of truth, however when a law is written and it lacks a penalty clause, it is left to the trier of facts, perhaps a federal judge, to decide what the penalty shall be. This Administration will go down in the history of this state as the worst offender of circumventing the public process. MR. MALATESTA stated that many people plan to bring their complaints to the Secretary of Commerce and they may ask for a review by a special prosecutor. He said his investigation has been criticized because he randomly chose the individuals he contacted, but his method was to choose five individual names and five fishing organizations and all of the processors on the list. He asserted that he did everything he could to be fair to the Governor. He noted what upset him most about the Governor's March 15 letter to the federal government is that the Governor attached the names of people who provided advice about his nominations to the North Pacific Fisheries Management Council (NPFMC). Those people were never contacted. MR. MALATESTA asked legislators to tell the Governor that they will not stand for circumventing the public process by supporting SJR 13. Number 824 SENATOR LINCOLN referred to the transcripts and asked Mr. Malatesta who he is investigating this matter for. MR. MALATESTA said he did this investigation on his own behalf but he noted that when investigative interviews are conducted, one must make sure that the person being interviewed is aware of the interviewer's background. He stated he is the investigator for the law firm of Arthur Robinson and Allan Beiswenger but he conducted the investigation on behalf of over 150 commercial fishing families and some Native groups that he does work for regarding fisheries issues. He noted he is an advocate for jobs and for Alaska's commercial fishing industry. CHAIRMAN HALFORD asked testifiers to state support or opposition to the version before the committee due to time constraints. MS. SUE ASPELUND, Executive Director of Cordova Fishermen United (CFU), stated CFU takes its responsibilities regarding appointments to boards and commissions that regulate the Alaska fishing industry very seriously. The NPFMC is one of the most important of those commissions. CFU supports the CS. CFU is well known to the Governor's Office of Boards and Commissions - they are in frequent contact. CFU attended the United Fishermen of Alaska (UFA) meeting in early March. It had prepared its recommendations for the nominations. CFU members contacted the Governor's Office at that time and were quite surprised about the disregard shown by the Governor's Office for CFU's input. MR. HERMAN FANDEL of Kenai said he owns three sport fishing associated businesses in the Kenai area. He informed committee members that about one week ago the Kenai Peninsula Borough Assembly voted down Resolution 23. That same resolution is now before legislators [SJR 13] with the intent of preventing the nomination of a sport fishing representative to the NPFMC. The sport fishing industry has no representative on this Council at all. Commercial fishermen are opposing the appointment of one person to the NPFMC simply because that nominee is a sport fisherman. This sport fisherman has contributed endless time, work and money to the protection of Alaska waters and its wild fish stocks. He is very knowledgeable about Alaska's fisheries and he will do an excellent job if appointed. He maintained there is more to SJR 13 than meets the eye. He stated he is very strongly opposed to SJR 13. MS. KAREN MCGAHAN, representing herself, informed committee members she has fished commercially and hopes to afford to do it again someday. She could not believe that Governor Knowles nominated Bob Penny for this position as Mr. Penny will act as a "fox in a henhouse." Mr. Penny's main qualification is that he has a fishing cabin on the Kenai River and Governor Knowles is often his guest. His appointment is a nice thank you from Governor Knowles at the commercial fishermen's expense. This appointment is outrageous and biased and, if not illegal, it is unethical. She believes Governor Knowles should withdraw Mr. Penny's name for the nomination. MR. DON JOHNSON of Soldotna stated he is opposed to the proposed CS for SJR 13. He views SJR 13 as a racist resolution. He believes the fact is that someone is asking for an appointee to be on the Council with a certain kind of ethnic background. He cannot believe Senator Ward would put forth this legislation for others to sign on to. A similar resolution was presented to the Kenai Peninsula Borough one week ago. The Borough Assembly voted the resolution down twice. The Assembly thought a lot was left to be desired from Mr. Malatesta's investigative process. He stated the Governor has no responsibility to speak to everyone in each fishing group. MR. BONDURANT, testifying from Kenai, informed committee members that he attended a three day discussion of the International Halibut Commission in Anchorage in January related to the halibut issue. It was apparent that the representation was completely weighted by commercial fishing participants. The State's trust responsibility for common use resources is supreme and he was surprised to hear Dr. Leaman, the Executive Director of the Commission, state that both the Canadian and U.S. governments have a robust commitment to the protection of the personal consumptive users of halibut stocks. Mr. Bondurant said he believes that will also be the policy when it comes to all the salmon fisheries. The make-up of the NPFMC has been monopolized by commercial fishing interests. MR. BONDURANT maintained that since beach, wildlife and waters have been recognized as a public trust resource through the centuries, it would appear to be the responsibility of the trustees, legislators, to support the rights of the public as a whole and ensure proper representation for all public interests. This pending issue must be viewed as an attempt at intimidation hiding under claims of process violation. If there is to be any disparity of that obligation of the Council membership as a majority, it should be in favor of the interests of common personal users. He offered to make copies available of papers he wrote to the International Halibut Fisheries Commission, the NPFMC, and the Alaska Sport Fish Division. MR. PAUL SHADURA, a Kenai resident, stated support for the proposed CS for SJR 13. He read a statement from Harry Bader regarding interstate commerce, which he believes this issue is about. He believes that the procedures to allow people to comment on the people who represent them on such an important board should be open. MR. DAVID MARTIN said he has been involved in the fish and game process for about 20 years and was chairman of an advisory committee. He believes this issue is about using a public process and knowing who the nominees are. He stated support for SJR 13 because it holds the Governor accountable for what the Magnuson Act requires. MR. MARK DUCKER emphasized that the public process is the backbone of our entire government. In his opinion, he agrees almost entirely with Mr. Martin in that the public process has been circumvented in this case. MR. GERRY MERRIGAN, representing the Petersburg Vessel Owners Association (PVOA), said he cannot support the portion of SJR 13 related to the membership of the Pacific Salmon Commission as that would necessitate opening up the congressional amendment establishing the Act. That Act was recently renegotiated and amended after a lengthy process. He suggested deleting that portion of the resolution and moving it forward. PVOA members have a long history with the NPFMC and have held several seats on it. From his personal experience, knowing one area of the Southeast fishery did not prepare him well for his three-year Council seat. He expressed concern that none of the six nominees advanced by the Governor were on a list known to the public, therefore consultations described in the letter to the Secretary of Commerce did not occur. The preferred nominees will represent a significant departure from present Council structure and make-up. There has been no public opportunity to ask or answer questions as to why. MR. MERRIGAN pointed out that six other people submitted their names for consideration. All six had some experience with the Council process, ranging from serving on either the Council, the Advisory Panel, Council committees, or at the very least, attending a meeting. None of those names were advanced by the Governor. Interested parties sought recommendations and endorsed some applicants and not others, no doubt bruising some feelings unnecessarily. One of the most insulting aspects of the Governor's letter is that he said he consulted with the commercial and recreational fishing interests of the State and he attached a list of the names of over 100 groups and individuals. Yesterday, he asked the Governor's Office how many of the groups and individuals knew that Mr. Benton and Mr. Penny were potential nominees. The response was honest, "Not many, very few." For these reasons, he supports SJR 13. MR. ARNOLD ENGE, a member of the Northern Panel of the Pacific Salmon Commission for 12 years and a Petersburg resident, said the Commission just completed a lengthy process to get the Treaty renegotiated. Legislation will be required to change the make-up of the Commission. The other parties to the Treaty from Canada and the Pacific Northwest would insist that there be no change in the power structure. Since its inception, the representatives on the Pacific Salmon Commission have done a fine job representing all people of Alaska. Alaska has been served well by that Commission during times when Alaska was being ganged up on by others. Consensus is required on all decisions made by that Commission. MR. TOM GEMMELL, Executive Director of the United Fishermen of Alaska, said his testimony is directed at the portion of the CS that deals with the NPFMC. UFA did not address the other sections of SJR 13 and deferred to its Southeast member groups to do so. In UFA's letter [to the Governor] of March 10, UFA endorsed five nominees for two of the seats and it was aware of two other people with sport fishing interests who had applied at that time. According to a printout UFA received from the Boards and Commissions Office, two applications were received on March 13 and two final names were received on March 15, the day the Governor sent a letter to the Secretary of Commerce. UFA had no opportunity to comment on those four names. He referred to a report published by the Secretary of Commerce in January, 2000. In that report the Secretary of Defense commented, "In consideration of the strongly competitive commercial fishing and environmental interests in the North Pacific fisheries, the current balance of inshore-offshore gear groups and ecosystem representation should be maintained to meet the apportionment requirements of the Magnuson Stevens Act." MR. GEMMELL asked to correct a comment made previously and stated that two people who represent sport and charter interests sit on the NPFMC Advisory Panel. The halibut issue has been ongoing since 1993 and representatives of the sport fishing industry were heavily involved in the committee work and elsewhere. One Council member, Mr. Kyle, has been designated by the Governor to carry the ball for the sport-charter fishermen. UFA is not opposed to changing the representation of the Council, but it wants the process to be public so that it can comment. The Governor's process only allowed user groups to comment directly to the Secretary of Commerce. UFA would prefer that discussions be held in Alaska first. SENATOR MACKIE stated that some of the Southeast fishing organizations testified at a previous hearing in strong opposition to SJR 13 and gave compelling testimony about why the make-up of the Pacific Salmon Commission should not be changed. He asked why UFA has taken no position on that issue. MR. GEMMELL replied that issue was brought up at the October UFA meeting but UFA only takes positions on statewide issues. SENATOR MACKIE remarked that he finds himself in a dilemma because he thought the arguments made about the make-up of the Pacific Salmon Commission by the Southeast fishing groups were compelling yet that portion of SJR 13 has not been changed by the CS. He said he recognizes UFA's dissatisfaction with the Governor over the process used but the other problem remains. He questioned why UFA has not looked at the make-up of the Commission. MR. GEMMELL said this issue only came up last week and he has not had time to poll the UFA board yet. Number 2036 SENATOR TAYLOR noted the Governor's March 15 letter lists UFA as the second organization that provided advice on his appointments. MR. GEMMELL stated UFA met on April [March] 8 and he signed a letter dated April [March ] 10 from the Board that named the people it supported. He pointed out that the Governor stated, in his letter to the Secretary of Commerce, that UFA provided advice. The word "consulted" was not used. Mr. Gemmell noted UFA had no opportunity to comment on the six names that went forward. MR. JIM BECKER, a member of the Northern Panel of the Pacific Salmon Commission and an interim member of the newly formed Transboundary River Panel, made the following comments about the part of SJR 13 that requests an additional commissioner to represent Alaska Native issues. The Northern Panel opposes that part of the resolution because it sees no need to add a new commissioner. Opening up the whole process would be very cumbersome. Alaska is well represented on the Pacific Salmon Commission. One phenomenon is that all of the gear groups that represent Alaska speak together with a unified voice before the Pacific Salmon Commission. One Alaskan already sits on the panel, and he has input on all of Alaska's positions with respect to the treaty issues. The Southern Treaty tribes have their own commissioners because they share harvest authority with their respective states. That situation does not exist in Alaska. A ten-year treaty has just been negotiated with Canada which provides Alaska with stability with respect to harvest sharing among fisheries. Alaska cannot just unilaterally add a new commissioner to the Northern Panel. Alaska has an internal issue of subsistence and Canada has an internal issue with its First Nation Settlement. Those issues are not normally dealt with on the treaty level. He noted that Mr. Dave Benton, who is on the Commission right now, does an excellent job representing all of the interests in the State of Alaska. CHAIRMAN HALFORD thanked all participants and announced that SJR 13 would remain on the table. The committee then took up HB 108.