SENATE RESOURCES COMMITTEE January 27, 1999 3:06 P.M. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor, Vice Chairman Senator Pete Kelly Senator Jerry Mackie Senator Sean Parnell Senator Georgianna Lincoln MEMBERS ABSENT Senator Lyda Green OTHER MEMBERS PRESENT Senator Loren Leman Representative Scott Ogan, Co-chair, House Resources Committee Representative Gary Sanders, Co-chair, House Resources Committee Representative Bill Hudson, Chair, House Special Committee on Fisheries COMMITTEE CALENDAR Briefing: Glacier Bay National Park and Federal Rules WITNESS REGISTER Mr. Rob Bosworth, Deputy Commissioner Department of Fish and Game P.O. Box 25526 Juneau, AK 99802-5526 Ms. Tina Cunning, ANILCA Program Coordinator Alaska Department of Fish and Game 333 Raspberry Rd. Anchorage, AK 99518-1599 Ms. Dale Kelley, Executive Director Alaska Trollers Association 130 Seward St #505 Juneau, AK 99801 907/586-9400 Mr. William Brown Friends of Glacier Bay P.O. Box 128 Gustavus, AK 99826 Mr. Jev Shelton, Working Group Member Commercial Fisherman 1670 Evergreen Juneau, AK 99801 Mr. Joe Emerson, Working Group Member Commercial Fisherman 10410 Dock St. Juneau, AK 99801 Mr. Dick Hofman, President Board of Alaska Trollers Association 130 Seward St #505 Juneau, AK 99801 Ms. Deb Woodruff, Working Group Member Gustavus, AK 99730 Mr. Gerald Merrigan Petersburg Vessel Owners Association Box 232 Petersburg, AK 99833 Mr. Tom Traibush, Working Group Member Gustavus, AK 99730 ACTION NARRATIVE TAPE 99-3, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:06 p.m. and announced that the Committee would receive a briefing on the Glacier Bay National Park and Federal Rules issues. MR. ROB BOSWORTH, Deputy Commissioner, Department of Fish and Game, said the main document he would be using in his comments was labeled "Briefing on Glacier Bay Commercial Fisheries." He said the most efficient way to work through the issue was to work through a chronology and three chronologies had been developed. The first section of the chronology was put together by Tina Cunning a few years ago. MS. TINA CUNNING, ANILCA Program Coordinator, said she would highlight some dates that were not on the chronology. February 26, 1925 is when Glacier Bay National Monument was created by a Presidential Proclamation (Executive Order). April 1939 is when Glacier Bay National Monument was expanded with an additional 900,000 acres which is frequently shown on maps to include a boundary line out to the three-mile limit including parts of Excursion Inlet. It's an area, if you match the acreage, the State has long contended that the 900,000 acre addition really only included the uplands. This has been a constant dispute. CHAIRMAN HALFORD asked if the original acreage only included uplands. MS. CUNNING affirmed that the original acreage was only uplands. In 1959 Alaska reached statehood (Statehood Act). State management of fisheries followed in 1960. On December 2, 1980 the Alaska National Interest Lands Conservation Act was passed. It expanded and redesignated the existing parks and refuges and created new parks and refuges. In late December, 1980, the National Marine Fisheries Service adopted whale regulations that prohibited commercial fishing for certain prey species within Glacier Bay waters. These were not Park Service regulations. In May 5, 1982 the Solicitor wrote a memo to the National Park Service Director (NPS) that stated they believed they could extend their jurisdiction and they could prohibit commercial fishing in Glacier Bay. At the request of the Citizens' Advisory Commission on Federal Areas (a commission established through the legislature and the administration), on September 29, 1982 the Attorney General refuted that earlier solicitor's opinion believing that the waters and submerged lands were not within the Glacier Bay boundaries and, therefore, you could conclude from that that commercial fishing could not be prohibited under Park regulations. On April 6, 1983 the Park Service published a rule to close portions of the three old parks: Glacier Bay, Katmai, and Denali. The Glacier Bay closures included certain snowmachine and airplane closures as well as commercial fishing. April 6 - 10 of 1983 there were public hearings on those regulations and a draft General Management Plan out that had been required under ANILCA's provisions. These established how lands and resources were to be managed. The Management Plan was out for review in 1983. The first April 1983 regulations the Park Service proposed were never implemented. On June 30, 1983 the National Park Service published national regulations which prohibited commercial fishing. These will be referred to at times, because Alaskans who had been here with the passage of ANILCA and the interim regulations which were published for the parks and refuges in 1981 and 1982 believed that the ANILCA legislation superseded the national regulations. In other words, the national regulations didn't apply if there were Alaska regulations. These 1983 national regulations are something the Park Service goes back to frequently as their justification for closure of commercial fishing and Ms. Cunning believes it doesn't apply. On July 20, 1984 the final general management plan for the National Park service was adopted and it allowed commercial fishing to continue in the park. On May 10, 1985 we had whale regulations adopted which exempted the commercial fishing vessels from entry permits. They still prohibited certain prey species from being harvested within Glacier Bay, but did not affect commercial fishing in other ways. In 1986 the ANILCA 13.17 wilderness reviews were completed in which Park Service had worked with the State on proposed changes to the wilderness boundaries which would have accommodated some of the activities which were going on in some places in Glacier Bay that were within designated wilderness areas which, by all rights, probably were not activities which, had Congress had the time to look at in detail, have been included in a wilderness designation. The Park Service actually worked cooperatively with the State during that process. On August 29, 1988 the Governor's Office sent a review of the wilderness EIS's to the regional director. In regards to Glacier Bay, Ms. Cunning pointed out that they did not waive our jurisdiction or our claims to ownership. The Work Group appreciated being able to work together with Park Service personnel, but didn't believe Park Service has the jurisdiction to affect our commercial fisheries. On October 17, 1988 the final wilderness EIS was adopted proposing various wilderness waters additions and deletions which would have resolved some of the issues facing us today. Those wilderness proposals, required by ANILCA, went back to the Department of Interior, but had never been forwarded. On May 22, 1989 the Glacier Bay superintendent wrote a letter to the Department of Fish and Game requesting that the Department cease issuing subsistence permits - that subsistence fishing was prohibited in Glacier Bay. In July of 1989 the U.S. House of Representatives attached to its appropriations bill directions to the National Park Service to quit discouraging subsistence fishing in the waters of Glacier Bay. On February 2 - 3, 1990 the Citizen's Advisory Commission on Federal Areas had public hearings and the National Park Service, for the first time, advised that it was considering that commercial and subsistence fishing was illegal in all of Glacier Bay. There was a series of public hearings. In 1990 the Commission wrote to the director of the National Park Service requesting that the studies that were being proposed be cooperatively conducted with the State in terms of evaluating the commercial fishing industry, its impacts, the needed studies, etc. Number 224 MR. BOSWORTH continued with the chronology, starting with 1990. On July 2, 1990 a memo was written from Collingsworth to Evison that reiterates the State's opposition to the wholesale exclusion of commercial fisheries, specifically speaking to wilderness waters. The sequence of discussion throughout the 1980's was first in regards to wilderness waters and later, closure of subsistence fisheries. MR. BOSWORTH'S observation was that wholesale exclusions of commercial fisheries beyond wilderness waters was one that didn't really evolve in the record until the early 1990's. Another theme reiterated in the Collingsworth memo is that we have agreed to identify ways to preserve the integrity of natural fish populations and national park values in Glacier Bay while also allowing traditional commercial and subsistence fisheries to continue. This is the notion that there need be no incompatibility between commercial fishing and the natural values of the park. The Glacier Bay Citizens' Caucus is the first organized group that met on a regular basis to discuss this whole issue and was organized by the Southeast Alaska Conservation Council (SEACC). They developed a proposal continuing subsistence use on the outer coast and Icy Straits open to commercial fishing in perpetuity, closing wilderness waters to commercial fishing, identifying special marine management areas, studying the rest of the waters to determine the impacts of fishing on the Park, and retaining commercial fisheries based on the results of studies. This draft proposal will appear throughout the 90's in various formats, including Congressional legislative drafts. September 1991 was the first introduction of Glacier Bay legislation with the inclusion of a cruise ship issue. It wasn't until August of 1991 that the first rule was advanced that would phase out commercial fishing in the Park. At that time that version allowed commercial fishing to continue for seven years, during which time studies would be done to evaluate the effects of commercial fishing. The continuation of fishing past that date requires a finding of no harm to park values and purposes. The burden of proof would be on the fisheries. Glacier Bay legislation was amended in 1992, and reintroduced in the House and Senate in 1993 when there was a new consensus process developed known as the Southeast Working Group, consisting of allied fishermen of Southeast Alaska, SEALASKA Corporation, SEACC, and ADF&G. Mr. Ron Somerville was the moderator. The main product of that group is a letter that went to the Secretary of Interior. A portion of it says, "Overall we are convinced that through meaningful partnerships there are ways to accommodate national park values and resources protection in Glacier Bay while allowing traditional uses to continue." The Working Group consensus points speak to continuing traditional fisheries, and 10 years of unbiased studies would be necessary to demonstrate damage to the Park before fisheries would be closed. This shifts the burden of proof in the other direction. Wilderness boundaries would be adjusted to avoid conflicts with commercial fishing. There was an interim proposal in 1994 on Glacier Bay which was in the context of potential legislation reiterating the same theme brought out by the Working Group. They were advanced in a draft proposal which didn't make it past the draft stage, perhaps because legislation at this point was foundering in Congress. MR. BOSWORTH understanding is that it was from opposition of the national environmental groups. In 1995 he became personally involved and convened the Glacier Bay Work Group consisting of SEACC, the Hoonah Tribe, Allied Fishermen of Southeast Alaska, Friends of Glacier Bay, Citizen's Advisory Committee, Sierra Club, Defenders of Wildlife, National Parks and Conservation Association; the National Park Service was observing. In the most recent work effort, they included representatives from the national conservation groups. The State position consistently articulated during those working group meetings followed the same theme - that there was no need to restrict or close fisheries. Ways could be developed so that fisheries and national park resource values could be found to be compatible. MR. BOSWORTH referred the Committee's attention to a map entitled Southeast Alaska Conservation Council and Allied Fishermen of Southeast Alaska Position on Glacier Bay Management, dated May 21, 1998. This doesn't represent all of the working group participants' unanimous agreement, because they didn't have complete agreement on everything, particularly the question of a phase-out. Number 375 CHAIRMAN HALFORD asked if the ground rules were that they had to have agreement on a complete package or was it something that could be broken up into pieces. MR. BOSWORTH replied that as facilitators it was determined that it was not necessary to have 100 percent agreement. The biggest split was whether there would ultimately be a need to phase out fisheries in Glacier Bay. He said they came to agreement on no-fish zones, seasonal closure, limits in numbers of vessels. He clarified that one of the ground rules was that there was no position until there was a complete package that people could vote up or down on, and they never got to that stage. CHAIRMAN HALFORD said didn't understand the answer and asked what it meant when the ground rules said the group would operate by consensus, being defined as a concurrence of all participants. It says there will be no minority or majority reports. MR. BOSWORTH explained that there were really two facilitated efforts and the ground rules he was reading from were from the very first meeting. In 1997 the National Park Service issued new draft regulations phasing out fishing in and around Glacier Bay which is what the committee will be responding to before the February 1 deadline. The work of the Work Group was preempted by action of congress. There is a question of economic relief of other small businesses and communities that are disadvantaged as a result of congressional action. There seems to be a will to visit that part of the issue as well as funding for ongoing research. CHAIRMAN HALFORD asked what was his interaction with delegation with regard to the 1998 amendment. It seemed like they were fast, furious, and done. What was the State's position? MR. BOSWORTH answered that there was no State involvement in the development of the 1998 legislation. They became involved when they were sent a draft of the bill along with everyone else. He said there was fine tuning of the draft. CHAIRMAN HALFORD asked if he was satisfied with the fine tuning. MR. BOSWORTH answered that he wasn't involved personally; that it was handled out of our Washington office. There are things to be done yet. CHAIRMAN HALFORD asked if we had an absolute guarantee of continued State management on the outside coast. MR. BOSWORTH answered that he is told our interests are protected, but he urged the committee to ask legal counsel. REPRESENTATIVE HUDSON asked if the State was still active in any lawsuit claiming that these waters are our waters. CHAIRMAN HALFORD said the answer was yes and we would hear from council, but he wanted to make sure and hear from members of the Working Group and members representing those who have something to lose directly. Number 450 MS. DALE KELLEY, Executive Director, Alaska Trollers Association, said she would respond to the committee's questions. CHAIRMAN HALFORD asked her to tell him what we could do to defend our position. He believes that those are our waters and we don't want to give anything away. He wants us to be on record doing as much as we possibly can to defend the interests of the State, its residents, and the promises that have been made in a series of federal acts over a number of years to protect traditional uses in those areas. MS. KELLEY responded there was a lawsuit, Alaska Wildlife Alliance v. the Park Service, that regarded whether or not ANILCA prohibited commercial fishing. The Ninth Circuit court determined that it didn't, but that the Park Service can regulate or deregulate fishing in their waters. She said the State is very protective of our jurisdiction over these waters and wants State management exclusively. We do not want the Secretary of Interior managing our fisheries. We have seen gross examples of why we don't want the Park Service managing our fisheries. The prime example is the Environmental Assessment that surrounds these regulations. After years of meetings, they still don't have the slightest inkling of how these fisheries are managed, where they occur, whose doing them; that they are not out of control fisheries with no limits set. They don't seem to have any inkling that we in Southeast Alaska have a great dependency on commercial fishing. About 20 percent of the tanner crab harvest in Southeast comes out of Glacier Bay proper and a great many of those permits come out of Petersburg. The EA states that the only community that's really going to be affected is Hoonah. So, MS. KELLEY questioned why the whole Southeast Conference felt it was important to pass resolutions. The State Chamber of Commerce listed it in the top 20 of their priorities for the State this year in their lobby efforts. People throughout the State think it's important, but the Park Service doesn't. So there is great concern about them managing our fisheries. MS. KELLEY explained that the ground rules were worked out on the first two days and haven't changed since and her understanding of consensus is that they were striving for total consensus, that a deal wasn't a deal until it was a package. She said this was an advantage to both sides. Her position was that she would talk about anything, but it was very important for the outer waters to be secure. They ended up not having consensus in the whole group, but within portions of the group. She thought they were in gridlock at this point. Some of them might be able to go forward together and other ones need to just argue the points they don't have agreement on. MS. KELLEY said she would like to see the legislature concentrate on some of the legal aspects. She wanted to see all the State's arguments laid out and protected. She did not want to leave anything out. CHAIRMAN HALFORD said it was his hope to make a recommendation to the two presiding officers so they could make comments before the closing period. MS. KELLEY said she would really look at the Regulatory Flexibility Act. There have been some modifications since the Glacier Bay issue. In terms of protecting small businesses in Congress, in 1996 Dale Bumpers led a charge and did some modifications that are interesting. Park Service hasn't done its job analyzing this issue from the economic standpoint, either under the Regulatory Flexibility Act or NEVA. As dependent as these communities are, it is very important to the State that they remain solvent. The Park Service doesn't think from the fishing perspective of having to go halibut fishing so you can gear up for king salmon. There is not much money in real terms. CHAIRMAN HALFORD said it was frustrating to see how they can worry about Gillnetters, seiners and crabbers and at the same time say it's fine to increase the 30,000 ton ships. MS. KELLEY agreed and said they have had some fortunate alliances in the environmental arena. She thought it was important to make sure the State's bases are covered for the future and that we very carefully explore the options from here. CHAIRMAN HALFORD said that he understands that they intend to go forward with the proposed rule making - to fill in all the blanks with a February 1 comment deadline. He hoped they could at least recommend going back to a completely new rule making process and provide the kind of input they ought to have. MS. KELLEY said the State, through the Governor's office, has asked twice for a new rule making. They haven't received the courtesy of an answer. SENATOR TAYLOR stated that he is so frustrated that they have had to go through all this work. Apparently, the Submerged Lands Act means nothing, the Statehood Act and Compact mean nothing. TAPE 99-3, SIDE B Number 560 SENATOR TAYLOR said he watched this same government drive all the foresters out of the woods and now he has to fight to keep them from driving the fishers off the seas. He said he is tired of begging. MS. KELLEY said that the Working Group process has been painful, because you always know that you're going to come out with less. If you don't have anything to trade, why negotiate? Industry really hasn't felt there was much choice. Some of the problems facing them are that some of the criteria they have laid out are so stringent that you could go from 400 to 15 boats in some fisheries - or sometimes five or 10 because we have never managed our fisheries data to match what they are trying to match up with. They can't show landings, for instance. CHAIRMAN HALFORD said the State should be negotiating from what he believes - that the State owns all the tide and submerged land in the Tongass and in Glacier Bay - and in Glacier Bay particularly, because of isostatic rebound. We probably own all of the coastline about one lot deep around the whole Bay. We ought to be pointing out to our Canadian friends who may want a salt water port that Tar Inlet now goes about two miles into Canada. If they want to argue with the Park Service, they should start building a road to their salt water port. We should start arguing from those points and then if you have to compromise, maybe you could save the traditional uses that exist. He never saw initial surrender as the best way to avoid a battle. SENATOR MACKIE said that this issue is of significant concern to him also. The Finance Subcommittee on Fish and Game last year funded a couple hundred thousand dollars to assist the Working Group, taking the money from the Attorney General's statehood rights budget. At that time it was felt that the legislature could contribute in that manner and the consensus group would come up with something workable. He said that native people of Hoonah and other surrounding communities, as well as the commercial fishing industry, have been utilizing Glacier Bay forever. It doesn't get any more complicated than that. For the Park Service to come in and assert this kind of takeover is completely offensive to him and other members. He would be one of the ones to line up behind a full-blown lawsuit. Having said that, he asked if the funding helped and did MS. KELLEY feel at some point it is going to be time for a unified effort between the State of Alaska, the subsistence users, and the commercial fishing industry to get behind a full-blown lawsuit and take our chances that way. MS. KELLEY answered that the money really has helped. It has enabled ADF&G to work very closely with the Group. They have been wonderful about cooperating in terms of deciding what's appropriate to spend it on. Fishermen have gone to D.C. and to Juneau to work on this issue, educational materials have been distributed. At some point, however, the State is going to have to take this on. She didn't know if this was the time. SENATOR MACKIE asked her what her feeling was about congressional actions being taken. MS. KELLEY answered that the dynamics in D.C. are very intense. Senator Stevens jumped when we were going to hold up the entire federal budget. All the industry had asked for was a one-year moratorium on the regulations so they could continue to work. The good news is that fishing is in the statute and is recognized as an appropriate use by Congress, but they also took some of the Park concepts and solidified them into statute, which concerns her. When Senator Stephens started working on the issue, the Group did not have communications with their office until about half a day before it went in, and there wasn't much they could do about it. One thing the Legislature could help them with is to insure that they work with the congressional delegation as the language is being crafted. SENATOR PETE KELLY said he totally supported her position, as he hoped she would support his timber and mining industry position in similar circumstances. CHAIRMAN HALFORD said he thought the congressional office was frustrated at not getting a consistent position from the State as to what to do. MS. KELLEY stated that ADF&G had been great to work with, giving insight into where they are going. The staff working on this issue should really be commended. MR. WILLIAM BROWN, Friends of Glacier Bay, handed his position statement to the committee. He is a permanent resident of Alaska, living here since 1975. He has worked as a career National Park Service historian, worked in several parks, and worked on the D2 Task Force. He endorsed the legislative framework negotiated with the Secretary of the Interior by Senator Stevens. The result is general resolution that, in his view, fairly reconciles National Park values and the social and economic interests of local fishermen and communities. The rule making will allow fine-tuning adjustments within the statutory frame. The mainframe provides for continued commercial fishing in the Parks outer waters from Excursion Inlet all the way to Cape Fairweather, a life-tenure phase-out for qualified fishermen in the Bay proper with a special provision for buy-out dungeness crabbers who have been fishing in Park wilderness waters. A cooperatively designed fisheries management plan should be designed with appropriate official representation and/or advisory consulting representation from federal, state, fisheries boards and commissions, fishing communities, and conservation interests to properly balance these interests in this new legislatively chartered Park waters fishery. The prior agreement of the Secretary and the Senator to this legislative solution would indicate appropriate oversight to protect both conservation and fishing in the development and operation of the fisheries management plan which would be administered by ADF&G. This legislative base which blends these two critical concerns should provide comfort to both of them. The law institutionalizes what has heretofore been a contest of principles, jurisdictions, and wills, breeding uncertainty and insecurity on all sides. In addition, the juxtaposition of fished and unfished waters offers research opportunities that can benefit fisheries both within and beyond park waters. He concluded, "Now begins the hard work to make the law work as intended." He said the Park Service had not fulfilled their obligations in the rule-making, changing direction a couple of times and not dealing with the economic impacts this might have which is required under the Flexibility Act. It generated an environmental assessment document that consciously ignored all of the input in terms of biological data and analysis that was available from the Department of Fish and Game and industry over time, and laid out a set of misleading statements, hypothetical "ogres." It was an exercise in fear-mongering rather than a document that laid out any kind of an objective assessment of what the resource is like. MR. SHELTON noted Senator Mackie's statement was true that no one had been able to come up with anything that has occurred to the negative advantage of the resource by the conduct of our fisheries in these waters. They are healthy stocks and are very well-managed fisheries. It's a very stable situation. There are no credible examples of conflict of users between commercial fishing and other users of the Park who are there for more recreational purposes. To the contrary, virtually all of the feedback he gets is that fishing vessels in there are an added feature that actually enhance the experience of visitors to the Park. One morning one of the big vessels of the Holland Line came out of the Muir Arm, saw that he was hauling gear, and came so close that they could have almost touched. He and his boy obligingly held up a 150-pounder and swore the boat had a list, because there wasn't anyone on the boat who wasn't leaning over the rail watching. He said this is an irrational decision about a rational situation. The Park Service should withdraw the environmental assessment and, because they have mishandled the economic issue, should be required to submit an environmental impact statement. TAPE 99-4, SIDE A Number 001 SENATOR TAYLOR commented that the Park Service didn't do a full Environmental Impact Statement; they just did an environmental assessment disregarding most of the input they received. MR. SHELTON responded that they totally disregarded the input that came from outside of their own particular biases. SENATOR TAYLOR said this should certainly be one of the points we consider in our comments that we request they conduct a full-blown EIS and do something on the economic information. MR. SHELTON added that one of the things that he finds particularly offensive is, that document provides the basis on which the concerned public is supposed to make its judgements and offer its input on issues. It's so misleading and erroneous that that should be the cause to redo it. They deemed by edict that there were no economic impacts. SENATOR TAYLOR said the State has the same option we had in the Dinkum Sands case, but oil was important enough to go directly to the U.S. Supreme Court on a direct action lawsuit. We need to start the consulting process so we aren't sharing ignorance. SENATOR MACKIE asked if he felt as a stakeholder he would have a seat at the table with the delegation in the congressional arena to try to make his case for a true consensus. He thought it was important to know if there was even a slight chance. He thought it important for us to let them know we are willing to litigate this issue, but allow for the stakeholder process to continue if the legislature would provide additional financial support for that effort. MR. BROWN answered that no matter what we do, we would elicit the immediate knee-jerk reaction from most of the national environmental groups in opposition who can bring down some formidable forces. He thought there had been success in getting consensus among Alaskan interests. The opposition in the Work Group came mostly from the national environmental groups, one of which was acting as a proxy for the Park Service. Number 150 REPRESENTATIVE HUDSON asked if we should have a legislative hearing on the environmental assessment, with the people who prepared it presenting it along with others who wish to testify and shed some light on the inaccuracies, etc. MR. JOE EMERSON, commercial salmon troller and longliner, said he had fished in Glacier Bay since he was 16 and he is now 42. He has participated in the Work Group meetings over the last two or three years and he thought there was a reluctance on the part of the State to enter into any kind of litigation regarding the jurisdiction of submerged lands in Glacier Bay. On the other side, he felt there was a high degree of confidence on the part of the Department of Interior and they were not intimidated by the idea of litigating this issue. He thought that unfortunately influenced the negotiations. He wished they could have settled the issue of the jurisdictional rights immediately because it might not have been necessary to make the concessions they did. The bottom line for the Park Service was that some type of phase-out was going to have to occur and at some point in the future commercial fishing was going to come to an end. He did not feel that they ever moved off that position at all. They offered a lot of concessions to buy them off of the concept of phase-out and buy perpetuity of commercial fishing in Glacier Bay. They didn't respond at all to the concessions, but then they incorporated every concession the fishermen made into their demands. Without knowing if the State has jurisdiction, it's hard to tell how big a hammer anyone has. He and his family are totally dependent on commercial fishing and trolling, so the risks are rather high. He would have to start over at the bottom again. His willingness to risk the future of the fishery might have been a little bit more conservative than others, but he thought they had all agreed that they wanted commercial fishing in perpetuity. SENATOR MACKIE asked if the Work Group had an opportunity for discussion with Senator Stevens before the resolution was hammered out. MR. EMERSON replied no; when he heard that Senator Stevens was involved, it was a surprise. It was Senator Murkowski who was most involved until that time. It was definitely communicated by the Park Service and environmental groups that they would not accept any kind of legislation that did not call for an eventual phase- out. SENATOR PETE KELLY said he thought we should discuss our options soon to bring about a quick solution to this situation. People's entire futures are at stake here. Thirty thousand loggers in Oregon faced the same future and they lost. SENATOR TAYLOR said he had been a commercial fisherman and totally sympathized with his predicament. He offered to get him a copy of the last U.S. Supreme Court case to address the issue of submerged lands in Alaska (Dinkum Sands -1997). The 9-0 vote reiterated the fact that the State of Alaska owns all of the submerged lands. The Court went so far as to say "and the fish that swim therein." He thought there was a window of opportunity in the U.S. Supreme Court because of their recent decisions which are much more states' rights oriented and much more constitutionalist. Number 349 MR. DICK HOFMAN, commercial fisherman, said he participated in the Work Group the last couple of years and was the President of the Alaska Trollers Association for about seven years. During the Work Group process the word from the Interior Department was that they couldn't put forth any proposals to resolve the situation. It was difficult to feel that they were in an honest negotiating situation. The environmental assessment that has been done is inadequate and an environmental impact statement is required including looking at the economic impacts to the fishermen, the support industries, and the communities that are dependent upon the resource. He concluded saying that all his other comments had already been made. CHAIRMAN HALFORD asked if he felt the State had taken a consistent position on this. MR. HOFMAN answered that to date they had been supportive of the Work Group process, although he would like to see more direction in terms of a big hammer that Mr. Emerson mentioned. CHAIRMAN HALFORD asked if the State was going to comment on the draft regulations. MR. BOSWORTH answered that the State is going to comment. MS. CUNNING explained that the comments were under review right now. CHAIRMAN HALFORD asked if the committee could get a copy of the draft so they could participate. MS. CUNNING thought they could get one tomorrow. MS. DEB WOODRUFF, Gustavus resident, said she has been a long-time member of SEACC and an ex-member of Friends of Glacier Bay. When they grew to a size of 100 people, the majority were from outside the Gustavus community and no longer represented local attitudes towards Glacier Bay. They were primarily Park Service employees, past or present. She fished with her husband for dungeness crab in Glacier Bay for almost 20 years and has been involved for 12 years in this issue. The question has been who has control of the waters: the State or the federal government; and the authority to rule on whether or not fishing is a legal activity within a national park. Too often the goal appeared to be reaching consensus on these issues. She was pleased to see how many points of agreement there were, but it was only the chasms that were bottomless that made efforts toward compromise an ugly ordeal. As a member of the Compensation Committee she made a great effort to inquiry others about possible solutions. She was eventually directed to the Economist for the Department of Interior, Mr. Goldstein, who recommended that there was no need to compensate Alaskan fishermen or the State of Alaska since there was no finding of significant economic impact. She asked why and was told that fishing was deemed an illegal activity in National Parks by regulation, no one could make claims for lost income when it was never legal in the first place. He explained to her that the economic loss incurred when evaluated by the Small Business Administration had to be so high in terms of volume and national interest, that not a single industry in Alaska would merit consideration of significant losses. She thought that was astounding. From this fixed position the Department felt it didn't need to offer any socio-economic impact studies about what their actions in closing down an entire key industry in Southeast would cost the State or its residents. Since no Park Service studies were available on impacts, and an EA diminished the importance of fishing to communities like Gustavus and Petersburg, she insisted that the fishermen be allowed to present their attitudes on what the losses were to the fleet and corresponding communities. Although we have listened to years of testimony by the Park Service and Department of Fish and Game scientist, no word was heard from those being deposed. They were given one and a half hours, and certain people were kept from sharing their findings from a National Park Service study. It reflected comments from over 50 fishermen on their history in Glacier Bay and what the closures would mean in their lives. They were given their day-in-court and much new evidence came forth, especially from Alaska Discovery, about how fishing was a non-issue for them regarding negative responses from clients in Glacier Bay. They were upset that the Service was continually and repeatedly making out that kayakers' and campers' experiences were diminished by their marginal contact with fishing boats in the Bay. It was pointed out that it was the highlight of the trip if one had some contact rather than the opposite. Although the stakeholder process was a good idea in theory and a few beneficial elements came out of it, none of them were applied in the final legislative solution. The purpose of the committee was to ascertain areas of agreement and then move on to areas of negotiated compromise or disagreement. Continually the State's position came across as weak and indefensible. Definite signals were sent that no one wanted a legal battle and other cases were pending. A strategy for a state's rights platform was missing. She saw no use of state experts or presenters. For example, no one outlined the law as it is stated in ANILCA or Dinkum Sands; there were no state fisheries economist statements or field specialists to refute Park Service VRD scientific findings in their biased report. She asked why comments from ex-Park Superintendent, Bob Howe, didn't carry more weight. He signed a current petition supporting historical levels of the fisheries in Glacier Bay under state fisheries management. He was there when the Park established long- lasting policy decisions regarding the continuation of existing fisheries except in wilderness. He also informed her that no one on his watch ever felt that the Beardsly Islands met the criteria and qualities necessary for an area to be classified wilderness. MS. WOODRUFF asked why top ADF&G officials did not participate in strategizing the best outcome for the State's fishermen. This summer the issue of compensation was discussed. Although this was important, no numbers were forthcoming from the Department of Interior and they were put off by being told by the Park Service, "They were working on it." The Alaska delegation was asking for results of negotiations to have something to place in a skeletal bill. Time was of the essence and the Working Group met in the fall and told Randy King that they had all the cards needed for a decision. Molly Ross did not attend any direct meeting. MS. WOODRUFF said that the Department of Interior irreverently stalled- out a process that was begun in good faith and was at a point of near resolution when Congress drafted a bill that gave some measure of relief to those who would be immediately deposed from a lifetime of fishing and reliance on this particular area. They figured out how far the State would go and called its bluff; they created divisiveness and diversion. MS. WOODRUFF pointed out that people who fish in Glacier Bay cannot pass their business on to their children nor can they sell it and get any value for it. It is a lost opportunity for small businesses and affects economic futures. She said there are no excuses for poor outcomes. They had reached a compromise position that was never given a chance to shine. She thanked Stan Leaphart, Jeff Hartman, Art Kohler, Tina Cunning, Bruce Wylock, Representative Albert Kookesh, and Senator Mackie and his staff, for all their help. She thanked Randy King, Chief Ranger for the National Park Service, who despite all their differences kept his sense of balance and compassion over an impossible situation. MR. GERALD MERRIGAN, Petersburg Vessel Owner's Association (PVOA), said the ultimate issue is who controls the submerged lands of Alaska. He said that Petersburg and a lot of other communities have been left out of the impacts and commercial fishing is the largest employer there. Fishermen are going to be impacted by this action in three ways: displacement from Glacier Bay, the increased competition from displaced fishermen, and a decrease in the amount of resource space. Basically, there is more competition for less available resource. Number 562 In the legislation there will be three fisheries within the Bay proper: tanner crab, halibut, and salmon troll. All other fisheries are prohibited including dungeness crab, king crab, ground fish, and shrimp. Petersburg has 46 percent of all the Southeast tanner pot permits, half of all the king crab permits, a third of all dungeness permits, and a half of the 300-pot dungeness permits. Additionally, they have 59 seine permits, over 200 troll permits, and over 200 halibut permits. All these fisheries are conducted in Park waters outside the Bay proper. This issue has been on-going since 1991 and the Park Service has never held a public hearing in Petersburg. At PVOA's invitation the Park Service held an informational meeting last fall, but would not take public testimony. In the environmental assessment, the sole reference to impacts on Petersburg reads, "The Glacier Bay tanner crab fishery has been of historical importance to Petersburg-based fishers. Some of these fishers may be economically affected by the action, but it's unlikely the action would change this well-established community's character or social composition. MR. MERRIGAN said they feel the Park Service has left out a lot of communities on this. With the drop in salmon price, crabbing has become more important to the fishing industry, particularly the timing of the tanner fishery occurring in the middle of the winter (giving them "a shot in the arm"). The comment period closes on February 1 for three items: 1997 proposed rule, the environmental assessment, and the new legislation. These three documents have many contradictions. For that reason PVOA has asked the Park Service to issue a new proposed rule and an EIS specific to the legislation. They were denied. TAPE 99-4, SIDE B Number 580 MR. MERRIGAN continued saying that the average person would have a difficult time comprehending this package, especially since the qualifying years for participation in the Bay aren't even specified. Regarding the 1997 proposed rule, the major flaw is that it concludes that the Park Service is in compliance with the Regulatory Flexibility Act as to the affects on small businesses. The Park Service states that, "The expected redistribution of commercial fishing efforts to areas outside the Park is not expected to significantly effect a substantial number of small businessmen. This is an interesting conclusion since the Park Service did not know then and does not know now how many vessels and fishermen they will be displacing. There is a complete absence of rationale for this conclusion. The EA is a 400-page document, but has three and a quarter pages devoted to the impacts of the alternatives on fishing income. The section labeled "issues considered, but not addressed" is longer than that. The revenue impacts are not broken down by fishery or community, but are presented in one full 3 x 5 inch table for all the alternatives and all the fisheries in all the communities. MR. MERRIGAN said another major flaw in the EA is the approach of status quo taken by the Park Service after the no-action alternative. Commercial fishing has occurred for over a hundred years in Glacier Bay. Therefore, a reasonable person would conclude that status quo would be continued fishing. The Park Service's no-action alternative is that all fishing would end immediately. This is in spite of the 1990 court case where the judge ruled that there was no statutory prohibition of fishing in the non-wilderness waters of Glacier Bay. Thus the Park Service has attempted to shift the burden of proof, that the action is not restricting or phasing-out fishing, but the action is whether to allow fishing at all. Even the alternative, designated "continuous fishing-restricted and limited participation" is, therefore, not status-quo. The Park Service has also refused to reissue or amend the EA that should have been an EIS in the first place. The new legislation does one thing - it statutorily provides for commercial fishing in Glacier Bay, but for the outside waters the law is vague regarding development of cooperative management by the State and the Park Service. PVOA thinks this means the State shall manage the fisheries and the feds shall cooperate. Given the Park Service track record, they do not trust them for cooperative management. Their 1984 management plan for Glacier Bay states traditional commercial fishing practices will continue to be allowed through most Park and Preserve waters. Halibut, salmon fishing and crabbing will not be prohibited by the Park Service. They are changing their minds on that. Distrust is not diminished when browsing the Park Service Glacier Bay web page which had a hot link to the Audubon Society where there was an article by the Superintendent of the Park entitled, "Changes Pending for Commercial Fishing in Glacier Bay." This link has been removed at their request. MR. MERRIGAN said for the three fisheries that are allowed in Glacier Bay, king crab, dungeness, and groundfish are now eliminated without cause. The stated Park Service intent is no new or expanded fisheries. These fisheries are historic and under limited entry; therefore, they are not new and expanding. It is PVOA's position that anyone or any vessel that has fished in Glacier Bay should qualify for a lifetime permit on these regulations. Proof of participation can be fish tickets or affidavits. The Park Service prefers six out of 10 years for participation which would effectively reduce eligible fishermen by 90 percent - down to a handful. There is no rationale given for that six out of 10 position. There is no threshold for the amount of gear or harvest, estimated bio-amounts, or allowable harvest rates. No justification is given other than to protect Park values. With sustained fisheries under ADF&G management for 40 years, they think that Park values are adequately protected. The other Park Service reason is to provide an area for the study of marine resources. It is proper and scientific method to ask them what it is they want to study and does this study necessarily preclude commercial fishing. Study in Glacier Bay will not necessarily be analogous to other marine studies as Glacier Bay is a recently post-glaciated area. If that's what researchers are looking for, Icy Bay may be preferable because it is considerably more remote with less traffic by cruise ship, commercial and sport fishermen. MR. MERRIGAN asked why the Park Service wants to kick fishermen out. This is the hardest thing for fishermen to understand. It's not a resource issue; it's not a science research issue; it's not a visitor interaction issue. The idea of commercial fishing falls on people. In a 1990 lawsuit, two plaintiffs, environmental groups, thought to prohibit commercial fishing saying they suffered a diminishment of the use and enjoyment of Glacier Bay. MR. MERRIGAN concluded by saying that he thought they should pursue both routes: legislation and litigation. Glacier Bay was established with a series of land withdrawals from the Tongass pre- statehood, but there's different issues involved. He thought the lawsuit has been chosen to move ahead and he thought the Department of Law should become involved. Number 538 SENATOR MACKIE made a motion to adopt the following: "I move that the Senate Resources Committee be firmly on the record in support of continued commercial fishing and subsistence uses within Glacier Bay and that we believe this is clearly a state's rights issue and that the chairman work with the affected parties to draft appropriate testimony to be offered into the record in the form of a letter from the legislative leadership on the issue." There were no objections and the motion carried. CHAIRMAN HALFORD invited anyone listening to submit testimony for their consideration. Number 510 MR. TOM TRAIBUSH, Gustavus, supported previous comments. He noted that the last set of meetings started in 1995 and at that time the environmental groups were willing to consider some areas of the Bay being left open in perpetuity to commercial fishing. They had restraints on holding more meetings, but then the idea was introduced as a proposed rule. He said that fishermen and environmental groups had both taken steps to get to some middle ground, but the proposed rule leaves them in the middle and the Park Service took three steps back. He thought the Park Service strong-armed the fishermen into thinking there was no legislation. He said he didn't have a lot respect for the Governor on this issue because he has never taken a real strong stand. A copy of a letter preceding the interagency meeting on marine reserves from 1996, a Park Service document, said according to Molly Ros, the Park Service's goal is to eliminate commercial fishing because it is an illegal extractive use and they are trying to marry this to the reserve concept. How are these concepts different? Are they not very similar? Jim Taggart, head researcher at the Park Service, responded that they are backing into the marine reserve concept because we want to close the Park for political reasons. This is the way they think. It has nothing to do with the actual extraction of the resource. He said we should be dealing with our delegation on this issue. One of the problems is, even if people are grandfathered in for a lifetime, everybody in that fishery feels the effects of that loss. If you're a troller, the value of your permit is less because the guy you sell it to can't go there and fish. The six-to-10-year time frame is an arbitrary number fixed by the Park Service. Dungeness crewmen would lose jobs and communities would lose processors, and these are definite economic impacts. CHAIRMAN HALFORD asked people listening in to fax the committee their comments and they would be circulated. He noted that both Senator Murkowski's and Congressman Young's offices were on teleconference. He announced there would be another meeting on this issue on Monday and adjourned the meeting at 5:45 p.m.