HJR 5-ALASKA FISHERIES; TROLL FISHERIES  3:32:09 PM CO-CHAIR BISHOP announced the consideration of CS FOR HOUSE JOINT RESOLUTION NO. 5(FSH) Urging the United States Secretary of Commerce, the National Marine Fisheries Service, the Alaska Department of Fish and Game, and other federal and state agencies to defend the state's fisheries, including the Southeast Alaska troll fishery. He stated the intention to hear the bill and look to the will of the committee. 3:32:32 PM REPRESENTATIVE REBECCA HIMSCHOOT, District 2, Alaska State Legislature, Juneau, Alaska, sponsor of HJR 5, introduced the legislation speaking to the following prepared statement: HJRS urges federal and state agencies to continue to defend Alaska's fisheries, including the Southeast Alaska troll fishery. This is important because the lawsuit filed by the Seattle-based Wild Fish Conservancy that targets the local Southeast Alaska salmon troll fishery is a threat to a way of life. Southeast households rely on salmon as a food source, communities depend on salmon to support the salmon and tourism sectors that are pillars of the economy. There is every reason to protect these fish. The fear is that this is an attack on one that may become an attack on all. . Rather than examining the pollution, vessel traffic, dams in salmon streams and other pressures on the areas in their area, the Wild Fish Conservancy has attacked the local troll fleet of Southeast Alaska, 1,000 miles away. I'd like to explain who the trollers are and what the lawsuit contends. Data from the last 100 years shows that trolling is one of the most sustainable fisheries there is. It involves about 1,500 fishermen who bring about $85 million into the local economy. Each fish is caught with a hook and line. The bycatch is the most limited of any fishery. Trolling is a low barrier fishery, so almost all Southeast communities, including Meyers Chuck, have at least one troller. Each trolling vessel is a family business, and each family business supports local schools and local economies. REPRESENTATIVE HIMSCHOOT deferred to Thatcher Brower to provide additional information. 3:35:15 PM THATCHER BROUWER, Staff, Representative Rebecca Himschoot, Alaska State Legislature, Juneau, Alaska, stated that he is a commercial troller who fishes in the summer and he also serves on the Alaska Trollers Association Board of Directors. He conveyed the following in support of HJR 5: • In 2019, the National Marine Fisheries Service conducted a consultation and issued a Biological Opinion under the Endangered Species Act (ESA) that considers what effect implementing the fishing regimes, negotiated by the Pacific Salmon Commission (Treaty), will have on species listed as threatened or endangered under the Endangered Species Act. These species include Chinook salmon and Southern Resident Killer Whales. An Incidental Take Statement was issued, which allows the fisheries to be conducted under State of Alaska authority using measures which are believed necessary to minimize impacts on listed stocks. • On March 18, 2020, the Wild Fish Conservancy, a Washington-based organization, filed a complaint against the National Marine Fisheries Service seeking to invalidate the 2019 Biological Opinion. • Wild Fish Conservancy sought to halt the production of Chinook salmon by Columbia River hatcheries that were intended to increase prey availability to the Southern Resident Killer Whales. Wild Fish Conservancy also sought to invalidate the Incidental Take Statement that covered the Southeast Alaska troll fishery. • In September 2021, Magistrate Judge Michelle Peterson issued a Report and Recommendation finding that the analysis governing the Columbia River prey increase program was flawed under federal law, and that the Incidental Take Statement governing the Southeast Alaska troll fishery was therefor also legally deficient. Judge Richard Jones adopted Magistrate Peterson's Report and Recommendation on August 8, 2022. • National Marine Fisheries Service is rewriting the Biological Opinion, but it will probably [take] some time. • Since the adoption of the magistrate's Report and Recommendation, the parties engaged in briefing on what the remedy for National Marine Fisheries Service's violations should be. Judge Peterson issued a second Report and Recommendation on December 13, 2022. That Report and Recommendation would invalidate the Incidental Take Statement for the Southeast Alaska troll fishery with respect to the winter and summer fisheries, putting those seasons in jeopardy. • U.S. District Court Judge Jones is now deliberating on the U.S. Magistrate Judge Peterson's Report and Recommendations for the remedy and will likely make a decision in the near future. • If the judge rules in the plaintiff's favor, there is an opportunity for the case to be appealed to the th 9 Circuit Court of Appeals. 3:38:24 PM At ease 3:38:42 PM CO-CHAIR BISHOP reconvened the meeting and opened public testimony on HJR 5. 3:39:05 PM AMY DAUGHERTY, Executive Director, Alaska Trollers Association, Juneau, Alaska, testified in support of HJR 5. She stated that the Southeast troll fishery predates any data keeping by the Alaska Department of Fish and Game (ADF&G) and during Territorial Days. She said this fishery is subject to the treaty allocation and the Board of Fisheries and it was doing well until the Wild Fish Conservancy filed a lawsuit. Since then, ATA has been doing everything possible to keep Southeast trollers fishing. She noted that the congressional delegation filed an amicus brief based on the economic importance of the troll fishery to the entire Southeast region that includes Yakutat. 3:41:22 PM TIM O'CONNOR, Mayor of Craig and Vice President, Alaska Trollers Association, Craig, Alaska, testified in support of HJR 5. He stated that Craig is the main port on Prince of Wales Island, which has a total population of just under 4,000. The commercial seafood landings at the port total 21 million pounds and have a value of $22.7 million. The port is ranked 30th in the nation for poundage and 52nd for valuation based on the top 137 ports in the US. Since logging has all but disappeared on Prince of Wales Island, commercial and sport fishing are mainstays of Craig's economy. The Wild Fish Conservancy lawsuit targets the troll industry, but if it's successful all gear groups are at risk. He said the Alaska Trollers Association and the City of Craig need the state to commit resources to help stop the lawsuit and protect the state's right to manage its fish resources. That right is in jeopardy. He highlighted that the City of Craig recently passed Resolution 23-03 supporting ATA's defense against the WFC lawsuit. He urged the committee to support HJR 5. 3:43:42 PM DANI EVENSON, Extended Jurisdiction Program Manager, Alaska Department of Fish and Game (ADF&G), Juneau, Alaska, stated that she also serves as the Pacific Salmon Treaty Coordinator. This makes her the department's point person on the Wild Fish Conservancy lawsuit alongside Aaron Peterson from the Department of Law. She continued her testimony speaking to the following prepared remarks: This case is a challenge to the National Marine Fisheries Service (NMFS) Biological Opinion for the Southeast Alaska salmon fishery the document that gives Alaska Endangered Species Act (ESA) "incidental take" coverage and allows our Pacific Salmon Treaty salmon fisheries to operate. The State of Alaska and Alaska Trollers Association (ATA) intervened in the case to defend Alaska's fisheries and interests. The lawsuit was brought by the Wild Fish Conservancy, a conservation organization based in Washington State. The suit specifically attacks Alaska's management of its Chinook salmon troll fisheries under the Pacific Salmon Treaty. The lawsuit argues that the Southeast Alaska Chinook troll fishery threatens the survival of several ESA-listed Chinook salmon stocks in Washington and Oregon, and the endangered Southern Resident Killer Whales that depend on Chinook salmon for food. The Federal Court in the Western District of Washington ruled in favor of the Wild Fish Conservancy supporting their claims. 3:48:59 PM The Wild Fish Conservancy disputed the provision of the BiOp [Biological Opinion] that required $118 million of federal funding be provided for mitigation actions to support Chinook salmon hatchery production to increase prey for killer whales, Puget Sound habitat restoration, and Puget Sound conservation hatcheries. These actions not only allow Alaska fisheries to continue in the face of ESA concerns, but also provide mitigation to allow salmon fisheries in the lower 48 to proceed. This lawsuit does not attack similar fisheries that occur off the coasts of Washington and Oregon, despite similar impacts.   The District Court Judge ruled on behalf of the Plaintiff Wild Fish Conservancy citing that NMFS violated its obligations under the ESA [Endangered Species Act] and NEPA [National Environmental Policy Act] in issuing its incidental take statement. Key Points from the Judge's order on summary judgment 11included: 1. NMFS's actions require certain mitigation 2. NMFS failed to create a binding mitigation measure that described "in detail the action agency's plan to offset the environmental damage caused by the project" for the prey increase program. 3. NMFS's failure to make a jeopardy determination on the prey increase program for the Chinook salmon ESUs violated its obligations under the ESA 4. NMFS violated NEPA requirements in issuing the ITS. Present Situation The lawsuit is currently in the "remedy" phase. U.S. Magistrate Judge Michelle Peterson issued a report and recommendation (R&R) and proposed order mid-December. The magistrate recommends: (1) the Biological Opinion be remanded to NMFS to remedy ESA and NEPA violations, (2) portions of the 2019 SEAK BiOp that authorize "take" of SRKW and ESA-listed Chinook salmon resulting from commercial harvests of Chinook salmon during the winter and summer seasons (excluding the spring season) of the troll fisheries be VACATED. In other words, removing ESA coverage for these fisheries while NMFS fixes the flawed BiOp. The magistrate judge denied Plaintiff's requests to vacate the portion of the BiOp on the prey increase program and to enjoin implementation of that program. The parties have completed briefings on their objections to the magistrate's report and recommendation regarding the appropriate remedy, and last week, Alaska's congressional delegation filed an amicus curae brief to provide support to the troll fleet. This portion of the case will be under consideration by the District Judge in the near future. 3:51:36 PM This litigation is still active and what happens next is in the hands of the judge. In the meantime, fisheries are proceeding as normal and ADF&G staff have offered assistance to NMFS to help re-write the BiOp since time is of the essence. Viewpoint The State of Alaska abides by the terms of the Pacific Salmon Treaty and the Biological Opinion that is tied to it and it is troubling that this ruling singles out our fisheries. We have a responsibility to look out for our fisheries and the Southeast coastal communities and families that rely on them. We will defend the right for our fisheries to operate while the NMFS addresses the rewrite of their Biological Opinion and that includes appealing any adverse decision that unjustly only targets our fisheries. Further, Alaska will not tolerate the suspension of its fisheries while other west coast fisheries equally impactful to killer whales and dependent upon the hatchery mitigation actions contained in the Southeast Alaska Biological Opinion, but not the target of this lawsuit, are allowed to proceed. If this decision sticks, we will be looking at having all fisheries that affect these salmon being treated equally under the law. 3:54:03 PM SENATOR CLAMAN said he wasn't clear about what the judge ruled on in favor of the plaintiff and the remedy that was sought. 3:54:14 PM SENATOR WIELECHOWSKI joined the committee. MS. EVANSON said key points on summary judgement included that part of the $118 million mitigation package was the annual requirement to provide NMFS with no less than $5.6 million per year for hatchery production. The judge said this couldn't be guaranteed because congressional appropriations are annual. NMFS also failed to create binding mitigation measures that provided a detailed description of the action agency's plan to offset the environmental damage caused by the project for the prey increase program. The question was whether ESA listed species in the area were impacted by the increase in hatchery fish. NMFS is addressing this in separate biological opinions for each hatchery. She said NMFS's failure to make a jeopardy determination on the prey increase program for the listed Chinook salmon violated its obligations under the Endangered Species Act and that NMFS violated the National Environmental Policy Act requirements in issuing its incidental take statement. SENATOR CLAMAN said he'd continue the conversation offline. 3:57:10 PM At ease 3:57:21 PM CO-CHAIR BISHOP reconvened the meeting. 3:57:32 PM SENATOR KAWASAKI asked whether other fisheries were impacted by the ruling. MS. EVANSON answered no; the ruling only targets the troll Chinook salmon fisheries in Southeast Alaska that take place in the summer and winter months. 3:58:11 PM SENATOR DUNBAR commented that if the troll fishery can be a target, there is no question that other gear types will be challenged in the future. He asked how the Wild Fish Conservancy justified targeting the Alaska troll fishery and not the troll fisheries in Washington and Oregon. MS. EVANSON replied that the Wild Fish Conservancy targeted the Southeast Chinook troll fisheries because the state's biological opinion had the $118 mitigation package; $56 million went to prey production and that troll fishery was tied to it. She speculated that the reasons included that that's where the lion's share of the harvest is and that the WFC board is largely comprised of sport fishermen. The thought process could be that without the Chinook troll fishery, the hatchery production from the Lower 48 wasn't necessary; one would offset the other. She said the reality is that all fisheries on the western seaboard rely on the mitigation measure; a foregone harvest in Southeast, doesn't equal a commensurate level of fish available to killer whales. 4:00:55 PM CO-CHAIR BISHOP opened public testimony on HJR 5; finding none, he closed public testimony. Finding no further questions or comments, he solicited a motion. 4:01:17 PM CO-CHAIR GIESSEL moved to report the CS for HJR 5, work order 33-LS0338\U, from committee with individual recommendations and attached fiscal note(s). 4:01:30 PM CO-CHAIR BISHOP found no objection and CSHJR 5(FSH) was reported from the Senate Resources Standing Committee.