SB 237-MGMT OF SUSTAINABLE SALMON FISHERIES  CHAIR HUGGINS announced SB 237 to be up for consideration. 11:42:07 AM JODY SIMPSON, Staff to Senator Charlie Huggins, Alaska State Legislature, presented SB 237 on behalf of the Senate Resources Standing Committee, sponsor. She said in 2001 the Alaska Board of Fisheries (BOF) adopted the statewide Sustainable Salmon Fisheries Policy, which recognized that threats to sustainable management exist and justify developing an explicit statewide umbrella policy to help guide fishery management plans and programs; copies were available. Given the importance of salmon in Alaska for consumptive use and commercial fishing, she said it is vital to sustain salmon populations for future generations by codifying this policy in statute. MS. SIMPSON told members the Alaska Department of Fish & Game (ADF&G) forecasts 5.6 million sockeye salmon will return to the upper Cook Inlet in 2008; it forecasts 344,000 for the Susitna River, 24 percent fewer than the 20-year average of 453,000. Based on Bendix sonar counts estimated since 1981, sockeye escapement into the Yentna River hasn't met the current escapement goals for five of the past eight years. However, ADF&G recently expressed low confidence in these harvest estimates, and there is uncertainty about the accuracy of Bendix sonar counts. To her understanding, weirs can allow differentiating among salmon species, but sonar typically can't. MS. SIMPSON reported this past month the BOF identified Susitna sockeye as a stock of "yield concern"; a related document was in packets. She said yield concern is defined in the Sustainable Salmon Fisheries Policy as a concern arising from a chronic [inability], despite the use of specific management measures, to maintain expected yields or harvestable surpluses above a stock's escapement need. It is less severe than a management concern, which is less severe than a conservation concern. Chronic inability is a continuing or anticipated inability to meet escapement thresholds over a four- to five-year period. MS. SIMPSON said many of Senator Huggins' constituents and sports fishing advocates in the Matanuska-Susitna area had hoped the BOF would address their concerns and reduce commercial nets to allow passage of more salmon, mostly silvers bound for the valley's streams. Instead, the board made small changes viewed by many as favorable to commercial netters, including the addition of some late-season fishing time and a slight de- emphasis on windows. MS. SIMPSON pointed out that committee packets contained letters, resolutions, and e-mails indicating heightened awareness. She said sports fishermen also want the state to focus on genetic sampling of salmon entering the inlet on their return to the Mat-Su; this assessment is ongoing, and the department hopes the legislature will appropriate another $10 million for further studies. Drawing attention to support for putting this policy into statute and highlighting the Mat-Su situation, she also noted the Department of Law (DOL), ADF&G, and Board of Fisheries oppose putting this into statute; Lance Nelson would speak to concerns and the fiscal note. 11:46:51 AM CHAIR HUGGINS inquired about the status of Fish Creek today versus eight or ten years ago. MS. SIMPSON responded that she wasn't a biologist or fish and game statistician, but could provide anecdotal information from living there 20 years. She said a lot of folks in the area remember years when the salmon yield was much higher and the fish much larger. Because of concern about the escapement from Fish Creek and Big Lake, some work is being done by the Cook Inlet Aquaculture Association to look at whether Big Lake is anaerobic now at its deepest levels. CHAIR HUGGINS recalled a personal dip net fishery there, which no longer exists. MS. SIMPSON replied that was her understanding too. 11:48:23 AM LARRY EDFELT, Member, Alaska Board of Fisheries, noted that Board of Fisheries chairman Mel Morris had asked him to convey again the board's opposition to making the Sustainable Salmon Fisheries Policy statutory. The board feels it would reduce its flexibility in responding to resource situations statewide, not just at Cook Inlet. MR. EDFELT said the policy took years to develop, with participation from diverse user groups all over Alaska. That there is a policy is a testimony to how hard everyone worked to create a policy that would result in sustainable salmon fisheries, which was the common goal. While the BOF tried to open the policy up for amendment a couple of times, it met with passionate opposition because people had worked so hard and every word became critical to some user group or another. MR. EDFELT pointed out that one reason the board opposes the legislation is that the proposed statutory language differs slightly from what the board adopted, with a lot of "shalls" in the statutory language and "shoulds" in the board's policy. He said DOL would present more detailed considerations. 11:50:35 AM CHAIR HUGGINS asked what it means that "yield concern" is less severe than "management concern." MR. EDFELT deferred to DOL, noting the regulation is several pages long. CHAIR HUGGINS observed that it also states the latter is less severe than "conservation concern." Saying friends and neighbors are increasingly frustrated, he mentioned the Kenai River and that a weir was proposed for deletion on the Deshka River this year because of funding, without consultation with anyone he knows. Here there is talk about the lack of fish, he said, the extinction of fish. Whatever it is called, Chair Huggins suggested the actions and numbers of fish are proof of the pudding. He asked Mr. Edfelt to comment. MR. EDFELT replied that certainly the board is interested in all the research information it can get. It wasn't the decision of the board to delete the Deshka weir; that was a policy decision within the department. CHAIR HUGGINS asked whether the board was consulted. MR. EDFELT replied no. In defense of the department, he said there is limited money for fisheries management and research activities throughout Alaska. The board and department constantly cry for more information, and it boils down to funding. As for the Deshka River, he said he isn't sure that is a terminal case. Salmon runs are cyclical in Alaska, and sometimes runs are down and then good. MR. EDFELT, noting he's attended BOF meetings since 1966, said over 40 years Alaskan salmon runs have gone up, and the runs generally are healthy. Although there are local stocks of concern, generally the flexibility given to the board and the department to manage has, to his belief, caused the increased returns over the last several decades. It's flexibility that is important, he emphasized. SENATOR McGUIRE recalled that her family had a fishing lodge in Bristol Bay for many years and similar arguments would break out; when commercial fishing boats were in, runs were down along the river. She asked: Is the board requiring that the gear affecting bycatch of salmon be improved, or has that discussion occurred? She gave her understanding that there is improved gear to reduce bycatch for specific fisheries, but there also is debate as to whether Alaska has implemented such policies or enforced them as well. 11:55:26 AM MR. EDFELT responded that the North Pacific Fisheries Management Council (NPFMC) has jurisdiction over trawl fishery bycatch in the Bering Sea. Although the BOF lacks authority, it is highly interested and wants lower bycatch. In further response, he opined there is little salmon bycatch in longline fisheries. As for incidental catch of king salmon when someone targets sockeye, he said the BOF has wrestled with that; it occurs in more than one area. While it has been suggested that changing the nets could allow larger kings to break through, to date the board hasn't adopted such measures. Some research is required, testing different types of nets to see what will retain sockeye but not king salmon. SENATOR McGUIRE asked whether lack of money for research hinders putting such policies into place. MR. EDFELT replied such a test fishery wouldn't be all that expensive and could be done. However, sometimes what the board wants isn't feasible within the department's budget. The BOF doesn't have budgeting authority of its own. 11:58:00 AM SENATOR STEVENS highlighted the bill's title, surmising that opposition might wrongly be interpreted as being against sustainable salmon fisheries. He asked Mr. Edfelt to address reduced flexibility for the board statewide if this passes. MR. EDFELT noted DOL would touch on this point as well. He said anything that requires the board to take a certain view will limit its flexibility. The Sustainable Salmon Fisheries Policy is pages long, with things the board "should" look at when adopting regulations. If those become "shall," an unnecessary level of complexity will be introduced. A Chignik salmon fishery involving one gear type doesn't require a complex policy such as needed in Cook Inlet, for instance, where the desire is to maximize 11 variables simultaneously. Board regulations reflect those different types of complexities. CHAIR HUGGINS mentioned that the Yentna River and Susitna River are in the heart of this area under discussion for fish. There isn't a moose season in that huge area, he told members, since there aren't any moose. Noting ADF&G also manages that, he said Mat-Su residents are losing patience. The fish are disappearing, and the moose are almost extinct there. He surmised this relates to lack of proactivity by ADF&G. 12:02:42 PM SENATOR WAGONER related that he grew up in an area that once had the world's largest salmon runs, the Columbia-Snake River system. While more than one factor may reduce salmon runs, he said one of the main things is numbers of people and encroachment on salmon streams. SENATOR WAGONER reported that he has taken $300,000 in the last two years out of his discretionary capital funds and put it into the districts of Senator Huggins and Senator Green, into the hands of the Cook Inlet Aquaculture Association in order to study some systems and see what some of the biological problems are. He said there is just as much concern at Cook Inlet with respect to those returns. He agreed that some is related to bad counts; for instance, the aquaculture association determined twice as many spawners go back to some areas as ADF&G had believed. SENATOR WAGONER told members this study is just a start of what is needed for the Susitna River system. There must be a long- term legislative commitment to funding to study the problem and try to find a solution, if there is one. It might relate to water quality, predators, or any number of things. But he said this legislation won't determine the problem or help it. 12:03:12 PM SENATOR GREEN suggested ADF&G should be pushing those studies and asking for funds, though she didn't know whether that had happened in past years. She questioned why anyone's discretionary money should have to fund those studies. If ADF&G needs information, she said, it should advocate for it. SENATOR WAGONER agreed this should have happened long ago, but said the department wasn't willing to step up. This information gathering needed to begin. He'd thought it was important enough for his area and the Mat-Su, he said, noting the Cook Inlet Aquaculture Association encompasses the whole Cook Inlet drainage including the Susitna. Informing members that he quit commercial salmon fishing two years ago, Senator Wagoner said commercial Cook Inlet salmon fishermen have been restricted by the BOF since the early 1990s, but nobody in the department had seemed to be seeking a solution. He suggested that is needed, rather than this type of legislation. 12:05:04 PM SENATOR GREEN offered that information brought to the department which it hasn't requested won't have nearly as much impact, since ADF&G biologists consider such information faulty. SENATOR McGUIRE asked Mr. Edfelt for an example of where this legislation would hurt a fishery. She surmised it could help redefine activities and resources on the part of the department and the board. If there is a fiscal note attached, she said, it is a clear direction from the legislature that this is where the legislature wants some resources to go. MR. EDFELT replied that the fear is being inundated with lawsuits from not addressing every single "shall" in the legislation when the BOF adopts a proposal. CHAIR HUGGINS read phrases in the bill related to habitat, productivity, sustained yield, and so on, which he called "motherhood and apple pie." He expressed concern about some of the feedback. He mentioned fishing holes that he'd historically flown over, deciding whether to land there, but said the fish aren't there now. And someone can't fish on a weekend using an airplane because of the numbers of people and lack of fish. It isn't just the Susitna River, he added; it's even where people don't live. 12:08:32 PM TONY RUSS, Wasilla, representing himself, noted he is a lifelong Alaskan who has fished the Kenai and the valley. There are increasingly fewer fish, he said, though the Kenai has great surges of fish and closures of a week or more result in more silvers in the valley. He has been on the Matanuska Valley Fish and Game Advisory Committee for the last year, as well as the mayor's blue ribbon sportsmen's committee, attending meetings and reading information; he attended BOF meetings two weeks ago. MR. RUSS surmised part of the problem is that commercial fishermen, with livelihoods at stake, go in force to meetings and pay close attention to the numbers. He said the BOF tries hard and does a great job with this immense burden, but much work is done in subcommittees. As the only recreational user listed at the recent meeting, he wondered if the board paid more attention to those with more extensive knowledge. MR. RUSS indicated he'd worked for ADF&G's Division of Commercial Fisheries some years ago and has a biology degree. He said reportedly there are 160,000 recreational users in upper Cook Inlet, but some 1,200 commercial permits. He said Cook Inlet produces perhaps 2.5 percent of the statewide salmon harvest, and 99 percent of the people that live in upper Cook Inlet that fish there - the recreational users - get 20 percent. MR. RUSS opined that the Division of Commercial Fisheries has the goal of helping commercial fishermen, that sports fisheries work with what is left over, and that the BOF is too biased towards commercial fishing. He said putting the policy into statute will force compliance, perhaps even doing away with the BOF, which works with the department. Expressing support for SB 237, he said it would go a long way towards getting fish back into the streams. CHAIR HUGGINS announced testimony would be limited to three minutes to accommodate all testifiers. 12:17:46 PM RICKY GEASE, Executive Director, Kenai River Sport Fishing Association, stated support for the BOF having the following in regulation: a mixed-stock policy, a wild trout policy, and a sustainable salmon policy. At the last BOF meeting, he said, the board started making use of the sustainable salmon policy, but there were a couple of interesting uses. For instance, the policy references that the burden of conservation shall be shared amongst user groups. In terms of a yield concern for the northern district, the department presented information that 75 percent of the production in that district has to do with the relative numbers of fish passing the Yentna weir. MR. GEASE said a lot is heard about beavers and pike, but 75 percent of the lack of fish there relates to lack of fish passing the Yentna sonar; in some ways, it relates to harvest in the central commercial district. Instead of restricting drift fishing in the central district and maintaining windows in the set net fishery, where there are harvests of northern district fish, he said the BOF just removed the burden of conservation from the northern district commercial and sports fishermen by saying there'd be no restrictions on either, thus removing the burden of conservation from everybody - which flies in the face of precautionary management within the policy. Suggesting there should be restrictions looked at for commercial fishing in the central district, he said the BOF decided against that. MR. GEASE said things can be put into statute and regulation, but it still comes down to how people enact rules and regulations. He expressed dismay that at the last BOF meeting, while a lot was heard about overescapement into the Kenai and Kasilof Rivers, there wasn't much attention to underescapement in the northern district. He suggested the policy being discussed could be useful in statute, although DOL would express concerns. He opined that it is "apple pie" at its heart, something the BOF and department need to pay attention to, which he didn't believe happened adequately at the last board meeting. 12:21:35 PM BRUCE KNOWLES, representing himself, noted he'd served on boards and on committees with the BOF. As for a yield concern versus a management concern, he explained that the former is a first step; if it fails, it proceeds to step two and step three, with the latter meaning serious trouble. Thus he'd submitted paperwork to have a yield concern; others requested included Fish Creek - which had been at the management concern level but was taken off, although it continues to miss its escapement goals - and a third, for chum salmon, for which he said the department knows the harvest has dropped from 1.1 million to less than 80,000 and yet it refuses to touch it. MR. KNOWLES told members a year ago in October the Matanuska Valley advisory committee submitted proposals for agenda change requests to the board, but it was turned down by the board at the direction of DOL, which said "you don't have to take the policies and work them on agenda change requests." He feels this has happened in more than one area. Citing the stocking program policy against damaging native runs, he said the Fish Creek native run has been destroyed and the same is happening with other creeks around Cook Inlet. MR. KNOWLES recalled that the board increased the size of nets by about an inch, allowing more king salmon harvest in the central district. He said the department knows if proper precautions are taken between July 1 and July 15-20, "we will get our stocks to the northern district." Citing restriction of the drift fleet two years ago when the Kenai was having trouble meeting escapement goals, he said there are adequate runs this year for coho and other species, although the escapement goal hasn't been met on the Yentna. He concluded that restricting the fleet does has an effect. MR. KNOWLES suggested this legislation is needed to put people's feet to the fire and remove personal judgments. Recalling at the last BOF meeting a commercial fisherman said repeatedly that he needed the sustainable salmon policy for Cook Inlet, Mr. Knowles said he was shocked to hear it. Mr. Knowles spoke in favor of a law that says a sustainable salmon policy is needed, in order to have integrity with respect to ADF&G and its management of Cook Inlet. 12:26:00 PM ROD ARNO, Executive Director, Alaska Outdoor Council (AOC), explained that AOC is a statewide organization of some 10,000 hunters and fishers. Conveying AOC's support for SB 237, he said the sustainability policy is "motherhood and apple pie" that will result in conservation, protection of other uses, and economy to the state. He surmised it will be much clearer for the public to understand than the policy or the handout prepared by the BOF for its last meeting. MR. ARNO said he'd spent the last 15 years, from the start of the intensive management law for game, attending Board of Game meetings; without that law, which set population and harvest objectives, he believes the state wouldn't have its active game management, which is starting to show positive effects. When it was first introduced, he recalled, DOL and ADF&G opposed it, concerned about its effect on the process; however, the department has successfully defended it from injunctions to stop the predator control program. MR. ARNO said the department, working with the administration, has legislation to modify it again, the third time in less than a decade that amendments have been proposed so the board and department can function without disruption. He predicted the sustainable salmon fisheries policy would experience the same metamorphosis. 12:29:29 PM VIRGIL UMPHENOUR, Chairman, Fairbanks Fish and Game Advisory Committee, informed listeners that 12 of the 15 advisory committee members were present at the teleconference site. Mr. Umphenour said he was one of the Board of Fisheries members that wrote the sustainable salmon policy. He'd been frustrated about not having a definition of "sustained yield" and had discussed it with fellow BOF member Dr. John White; he mentioned concern about commercial fishing interests in blue water. Mr. Umphenour and Robin Samuelson wrote a two-page definition, and then he and Dr. White discussed the need for a sustainable policy that boards would have to follow. MR. UMPHENOUR recalled there were changes on the board and Dan Coffey helped a lot. After the BOF asked the department for help from independent scientists, half a dozen from the Western U.S. helped over a year's time. He indicated the board met in Girdwood after the policy was written and then took it throughout Alaska to every board meeting, scheduling input, holding discussions, forming a committee, and so on. Four years were spent, and it finally went into regulation. No seated board member that signed the recent resolution worked on the sustainable salmon policy, he added, saying the meat of the proposed statute is to change about four "shoulds" to "shalls." MR. UMPHENOUR asserted that the board violated the sustainable salmon policy at its last meeting. The Yentna stock was a stock of concern 12 years ago when he was on the board; it hasn't changed. Then, he said, rather than addressing the problem, the board expanded an intercept fishery and let Cook Inlet drift gillnetters fish on those stocks, as well as northern district set netters. Calling this a flagrant violation, he stated his belief that the policy needs to be in statute. 12:33:14 PM MIKE TINKER, Fairbanks Fish and Game Advisory Committee, speaking in favor of SB 237, said there are lots of reasons to codify the policy. Highlighting two resolutions from the present Board of Fisheries, he said previous boards that developed the policy realized the guidelines were desperately needed for uniform regulation, for emphasis on fish stocks that weren't doing well, and for allocation decisions. The present board opposes SB 237, he said, "in my opinion acting like disgruntled teenagers rebelling against parental control." MR. TINKER offered his belief that the assumptions in the BOF's resolution are incorrect, although he agreed the policy was fully and properly developed. He said statutory protection for the policy would strengthen its effect on fisheries management, since otherwise it could be repealed through a simple board vote. Disagreeing that codification of intensive management (IM) for wildlife caused lawsuits, he said minutiae demanded by a frustrated ADF&G - placing details of the IM process into Title 16 - caused the lawsuits. He suggested that a bill from the administration to remedy this problem shows the system is working, since a problem that arises can be fixed. MR. TINKER disagreed with a statement in the BOF resolution that there is no identified problem. He proposed examining BOF meeting records over several years, which he said show complaints from advisory committees, the public, and subsistence fishermen. He mentioned unmet spawning escapements and international treaty obligations, as well as ignored stocks of concerns and lack of action for protections. Saying SB 237 is needed for future generations, he added that the BOF needs to stop complaining and follow the policy, which he indicated will allow the board to avoid getting sued. 12:36:11 PM HAL HUME, Fairbanks Fish and Game Advisory Committee, a nine- year member, concurred with Mr. Umphenour and Mr. Tinker and stated support for SB 237. He said this adds statutory strength to the commonsense approach of management for sustained yield of Alaska's salmon fisheries. Citing a 12/2/05 BOF meeting in Valdez, he said significant testimony showed upstream subsistence users in villages have seen dramatically fewer salmon in Copper River tributaries. Also, his family has fished the Gulkana River many years and noticed a significant reduction in size and abundance of king salmon. Saying this must be corrected for future generations, Mr. Hume predicted SB 237 will help significantly in protecting the salmon fishery. MR. HUME opined that the current BOF has a bias towards commercial fishermen. Noting page 2, line 5, subparagraph (c) of SB 237 says management "shall" be based on certain criteria, he said this is essential to assure compliance with principles and criteria established over many years by competent board members and others concerned with long-term sustainability of Alaska's fisheries. He emphasized that Alaska's fish and game belong to all, not just the commercial industry. Estimating there are over 15,000 upstream users of the Copper River drainage alone, he said the BOF must begin serving everyone. 12:38:47 PM DR. JOHN WHITE, Bethel, expressed his personal support for SB 237, noting he is a long-time commercial and sport user of fisheries resources in that region and had been a BOF member for seven years, serving as chair; during that time, the aforementioned policy began. He said having that policy in regulation today allows the board and the public to understand what is necessary for salmon resources and their conservation. DR. WHITE agreed this comes down to "should" or "shall." He suggested the issue is whether the legislature chooses to create a firewall - that the board shall do things to conserve stocks, providing a clear record for the public and the legislature. He surmised such a firewall would prevent board action and ongoing management actions by ADF&G that create "train wrecks" regarding salmon resource conservation. "Should" allows the board to look the other way, he said, which only the legislature can prevent. Referencing testimony from Fairbanks and the Matanuska-Susitna regions, he surmised people from the Arctic-Yukon-Kuskokwim (AYK) region also would say they'd witnessed such train wrecks. DR. WHITE expressed concern that budgetary issues affect research and that there won't be information for the board to act on in the future. He also encouraged the committee to ensure that the bill, if it passes, includes the definitions sections from the regulations, 5 AAC 39.222. He said the devil is in the details, and the bill lacks clarity in this respect. CHAIR HUGGINS asked how long "should" has been the operative term. DR. WHITE answered from day one in this policy. 12:44:22 PM REUBEN HANKE, Kenai River Sport Fishing Association, stated support for SB 237 and lauded Dr. White's testimony. He recalled the last BOF meeting, saying the board did only half of what was needed: starting to look at research needs in the northern district, but failing to come up with a management plan. As a result, as Mr. Umphenour had mentioned, there is extended fishing time on fish headed for the northern district, as well as extended time in the central district, to the middle of the month; thus Mr. Hanke said he wonders how long it will be until there is a concern for those coho salmon as well. 12:46:02 PM LANCE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, spoke in opposition to SB 237. Involved with BOF work for almost 20 years, on both the regulatory side and the enforcement side, Mr. Nelson specified that he was speaking on behalf of DOL; while he would express concerns of the board and ADF&G, others such as Mr. Edfelt could speak for themselves. MR. NELSON said while believing the bill is well intentioned, DOL has serious concerns about its language and effect on the regulatory process for the BOF and ADF&G in Alaska. He pointed out that there was an effort to remove the aforementioned policy from regulation last year and just put it into policy; that got no support from the BOF. He indicated the board is trying to ensure closer compliance with the standards it set for itself, with renewed emphasis on criteria and standards in the policy. MR. NELSON highlighted testimony that the operative word in the policy is "should." He told members there are lots of "shalls" and "wills" in that policy. Indicating DOL created a summary for the board and public to use in addressing the policy criteria during the board process, he said two pages of standards and criteria are prefaced by the mandatory "shall" language in the regulation itself. MR. NELSON said one problem is that most of the concern focuses on a few areas, but the statute would apply statewide; it could present real challenges for the BOF in regulating the state's fisheries. Also, the bill sets difficult or perhaps impossible standards and will likely result in unexpected consequences. For instance, paragraph (a)(1) references a comprehensive policy. He asked whether that means every regulatory plan must be comprehensive, an unrealistic standard for many stocks throughout Alaska, based on the amount of information DOL has and the amount of interest in some of those stocks. MR. NELSON addressed paragraph (a)(2), saying almost all plans are designed to achieve maximum or optimum salmon production. The BOF would have to supply affirmative data on each of the listed criteria and formally consider all criteria, regardless of whether each was an important factor in the particular proposal before the board. In such cases, he said, consideration would tend to be a formal, rote recitation of the criteria, without translating into better, more informed decisions. However, failure to expressly address any of the criteria could result in successful legal challenges against board regulations. 12:50:11 PM MR. NELSON noted a major concern relates to subsection (b) of the bill. He said DOL believes the phrase "must ensure" sets an impossible standard for salmon management. "Ensure" means to guarantee a result; this is impossible given how salmon return and the state's limited ability to control their life cycle. And although the BOF has limited control over the marine habitat of salmon and no power to guarantee the sustained economic health of Alaska, he said subsection (b) requires regulations to do those things. MR. NELSON turned to paragraph (c)(1), saying even the sustained yield provisions of Alaska's constitution don't mandate that salmon stocks be maintained to ensure sustained yields. The constitutional provisions say fish shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses. That language has been interpreted with flexibility in light of the record of the Constitutional Convention, he said, which states, in pertinent part, the following: As to forests, timber volume, rate of growth, and acreage of timber type can be determined with some degree of accuracy. For fish, for wildlife, and for some other replenishable resources ..., it is difficult or even impossible to measure accurately the factors by which a calculated sustained yield could be determined. Yet the term "sustained yield principle" is used in connection with the management of such resources. When so used it denotes conscious application insofar as practicable of principles of management intended to sustain the yield of the resource being managed. That broad meaning is the meaning of the term as used in the Article. MR. NELSON noted the Alaska Supreme Court recognized, in elaborating on the flexibility for sustained yield, that "the primary emphasis of the framers' discussions and the glossary's definitions of sustained yield is on the flexibility of the sustained yield requirement and its status as a guiding principle rather than a concrete, predefined process." On the other hand, he said, the bill's language imposes a standard of strict guarantees that DOL believes the board won't be able to use in many instances. 12:52:22 PM MR. NELSON alluded to paragraph (c)(2), saying the directive "shall be managed to allow escapement within ranges necessary to conserve and sustain wild salmon production and maintain normal ecosystem functioning" is problematic. There are variables in salmon management. The Alaska Supreme Court recognized - in the Native village of Elim case as well - that the board has to consider weather, natural predators, competition with other fish, international fishing efforts, water pollution, improved efficiency of fleets and fishing methods, and that several different species of salmon travel through one fishery, creating a mixed stock that increases management challenges. MR. NELSON also pointed out that salmon have a fluctuating cycle that makes estimating returns from year to year difficult, even under the best conditions. Hence, he said, DOL believes using mandatory terms like "shall" and "ensure" in a salmon management statute sets up unrealistic expectations and invites legal challenges, which are much more likely to be successful with such mandatory language. MR. NELSON opined that paragraph (c)(4) could be interpreted to require the board to shut down any mixed-stock fishery that involves take of a depleted salmon stock, regardless of consequences to other fisheries or other escapement objectives. Thus a relatively low rate of interception of a depleted stock could result in closing a fishery, causing significant overescapement and possibly harming production of another stock, even while providing little benefit to the depleted stock. Failure to define "depleted" and "actively restored" also raises legal concerns, he told members. CHAIR HUGGINS requested that Mr. Nelson provide his comments on specific concerns in writing. MR. NELSON agreed, indicating he'd sent comments to the chair's office. He summarized by saying the problem with the bill is that while it is well intentioned, it sets impossible standards and won't give the results people expect. Just setting criteria doesn't mean BOF members will view certain fisheries differently, with more emphasis. He said the board process is very useful and, in his mind, effective - gathering information from interested parties and coming up with reasonable decisions. MR. NELSON pointed out that over the years, board members view things differently and make adjustments. He also said the whole story from the last board meeting wasn't heard today; more can be found in the record than just dissatisfaction with BOF actions. He concluded by saying he believes a comprehensive policy like this will cause more damage to the process than it will help it. 12:56:08 PM SENATOR GREEN asked if this is based on current regulations that are in policy. AN UNIDENTIFIED SPEAKER replied yes, for the most part. SENATOR GREEN said she needed to see a copy of the regulations to see where they've been merged and changed. 12:56:41 PM CHAIR HUGGINS said intensive management is being done for game, and there is legislation at the request of the administration. He asked Mr. Nelson whether he was familiar with that. MR. NELSON answered that he was generally aware of it, but didn't work on the game side. CHAIR HUGGINS asked Mr. Nelson to adopt that philosophy and bring some solutions. He noted solutions proposed in the current bill were brought forward by constituents and others to try to solve what some perceive as a problem. MR. NELSON replied that to the extent the attorney general, commissioner of ADF&G, and BOF would authorize him to do that on their behalf, he'd certainly do so. CHAIR HUGGINS said he'd like Mr. Nelson to do it on behalf of Alaskans, who pay his paycheck. 12:58:26 PM SENATOR STEVENS opined that Mr. Nelson's cautions were highly important, talking about unexpected consequences, unrealistic expectations, and that it could cause more damage than it would help. As to whether he could actually bring solutions, Senator Stevens said that's another issue. Recalling that Mr. Edfelt said this legislation, if passed, would reduce the board's flexibility because it would apply statewide, Senator Stevens asked whether that was Mr. Nelson's conclusion as well. MR. NELSON affirmed that. As an illustration, he said Cook Inlet has a small pink salmon run in a particular stream. Given decreased interest in pinks compared with sockeye, kings, and silvers in other areas of Cook Inlet, is the information available to guarantee proper escapement, sustained yield, and diversity for that particular run? He said probably not. If the board must take mandatory actions, how will that impact sockeye fisheries, coho salmon, and other stocks in other places? If anyone pushes that issue and sues over it - people opposed to fishing in general because of concerns about Beluga whales, for example - what corner will the board be boxed into? He said that concerns him. SENATOR STEVENS reiterated how important he believed it was to listen to Mr. Nelson, saying he looked forward to his written comments and hearing more from him in the future. CHAIR HUGGINS stated the intention of having Mr. Nelson testify in person if possible, but said he was looking for solutions. 1:01:17 PM BILL LARRY, Fairbanks Fish and Game Advisory Committee, stated support for SB 237. He said there are many sport fishermen, and this has been totally controlled by commercial fishermen, which must stop. He surmised passing the bill would be the best thing. He said the ADF&G folks are paid by Alaskans, and he believes they need to "get out and start doing some work." 1:02:41 PM BYRON HALEY, President, Chitina Dipnetters Association, Fairbanks, voiced support for SB 237. He said at the last annual meeting of the AOC and the Alaska Fish and Wildlife Conservation Fund in Anchorage, February 8-10, Mr. Umphenour, Mr. Edfelt, and Dr. White presented this and there was a vote to support this issue. On behalf of the Chitina Dipnetters Association, Mr. Haley said, he'd voted to support it strongly. CHAIR HUGGINS asked whether anyone else on teleconference wished to testify; there was no response. 1:04:27 PM JERRY McCUNE, United Fishermen of Alaska (UFA), told members he hadn't planned to testify, but wanted to respond to today's testimony. He said UFA is the biggest statewide commercial fishing organization and opposes SB 237 for the reasons stated by Mr. Nelson. Specifying that this isn't opposition to sustainable fisheries, Mr. McCune voiced support for any studies that come up with results. The UFA doesn't want stocks of concern anywhere, he said, whether the Mat-Su or Bristol Bay. That isn't good for anyone including commercial fishermen, sports fishermen, guides, or those who fish for personal use. MR. McCUNE noted he'd listened to public testimony at the BOF meeting for two days; both sides can get a little testy. He said he doesn't begrudge a guide or anyone else making a living. Commercial fishermen are trying to do just that, and those fishing for personal use are trying to take fish home for food. He spoke in support of trying to get funding for the Mat-Su that will give results, but not studies for their own sake MR. McCUNE discussed the fragility of lake systems with sockeye, citing Coghill Lake, where escapement collapsed after too many fish were added and it took years of work to fix it. He also gave his understanding that Mat-Su lakes aren't producing big enough smolts, which may require feed or another solution. He said all fishing interests should sit down together to ensure there are no stocks of concern, no matter where. He suggested getting ADF&G on top of this, with studies that give results, to make those systems more productive for all users. SENATOR GREEN asked if this was similar to the conversation during the Fairness in Salmon Harvest (F.I.S.H.) Initiative. MR. McCUNE laughed and said it probably was; he offered recollections about that time. Returning to SB 237, he said commercial fishermen want to stay in business and also keep the stocks healthy; he cited personal examples, saying of course commercial fishing should be cut back if there is any problem in meeting escapement goals. While most fishermen aren't happy about it, he added, they know it's best for the resource. MR. McCune agreed with Mr. Nelson that this bill will tie the hands of the BOF and ADF&G. For example, if one stream has only 50 fish returning whereas another has a million, the bill requires shutting down the whole area. Saying the BOF policy has worked pretty well and is used by the board a lot, and that there are unhappy parties on both sides of the issue, Mr. McCune expressed willingness to help with respect to the Mat-Su and ensuring there are no stocks of concern in Alaska. CHAIR HUGGINS spoke about recent good fishing at Coghill Lake but also highlighted the need to correct the situation in upper Cook Inlet. He held SB 237 over.