Legislature(2003 - 2004)
02/20/2004 03:35 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SJR 26-APPEAL WILDERNESS SOCIETY V U.S. F.&W. CHAIR SCOTT OGAN called the Senate Resources Standing Committee meeting to order at 3:35 p.m. Present were Senators Thomas Wagoner, Ben Stevens, Fred Dyson, Ralph Seekins, Kim Elton and Chair Scott Ogan. Senator Georgianna Lincoln was excused. The first order of business to come before the committee was SJR 26. MS. AMY SEITZ, Staff to Senator Wagoner, sponsor of SJR 26, said the resolution requests the Department of Interior and the Department of Justice to appeal the decision the Ninth Circuit Court made on December 30 saying that the Tustumena Lake Salmon Enhancement Project was in violation of the 1964 Wilderness Act. The enhancement project started 30 years ago as a research project conducted by the Alaska Department of Fish and Game (ADF&G). In 1993, it was turned over to the Cook Inlet Aquaculture Association (CIAA), a non-profit, that takes eggs from salmon returning to Tustumena Lake and incubates them at the Trail Lakes Hatchery at Moose Pass. In early spring of every year, the salmon fry are returned to Tustumena Lake to follow the rest of their regular cycle in Cook Inlet. The project has been jointly assessed a number of times by the CIAA and the U.S. Fish and Wildlife Service. The Wilderness Act Consistency Review found that the project doesn't conflict with the 1964 Wilderness Act since it's not a commercial enterprise. A District Court decision also stated the project is not a commercial enterprise and does not conflict with the 1964 Wilderness Act. However, the Ninth Circuit Court, on December 30, reversed the decision of the District Court saying the project does violate the Wilderness Act by being a commercial enterprise and offends its mandate to preserve the natural conditions that are a part of the wilderness character of the Kenai wilderness. SJR 26 requests that decision be appealed so the enhancement project can continue. It also asks the Department of Interior and the Department of Justice to request a temporary stay of the decision so the 6 million hatchery fry are not terminated. CHAIR OGAN asked where the hatchery is located. MS. SEITZ replied in Moose Pass. CHAIR OGAN pondered aloud the concept of hatchery fish swimming in the river violating the wilderness quality of the area. "Am I missing something here?" MS. SEITZ nodded agreement. SENATOR THOMAS WAGONER corrected him saying that the fish are swimming in a lake, not a river. He explained that basically, if the 6 million fry can't be put back into the system from which they came or another lake isn't found to put them in, a lot of money and fry would be wasted. CHAIR OGAN groaned, "I'm sorry, the Ninth Circuit drives me nuts, sometimes. You can put that on the record." SENATOR RALPH SEEKINS asked if Tustumena Lake was withdrawn by the federal government prior to statehood. MS. SEITZ replied that it would have been made a refuge in 1964. SENATOR SEEKINS said: As I understand the Equal Footing Doctrine, Submerged Lands Act, unless it was reserved prior to statehood, that's a state navigable waterway and not subject to federal jurisdiction. Under the Submerged Lands Act, it would be subject to state management. I don't understand how the federal government with an act that came into play after statehood has somehow or another changed the nature, the management structure, of a state-owned navigable waterway. CHAIR OGAN responded, "Possibly by asserting the Reserved Water Rights Doctrine...that's probably a question to ask the attorneys." SENATOR WAGONER maintained that the area was withdrawn before statehood and was known as the Kenai Moose Range. The Range was a federal reserve dedicated to the continuation of the species of the Kenai moose. He didn't know how that would mesh with the state's navigable water issues. SENATOR SEEKINS asked if the waterways were withdrawn when the Kenai Moose Range was established. MR. RON SOMERVILLE, Resources Consultant, House and Senate Majority, affirmed that the Kenai Moose Range was created prior to statehood, but added that litigation in the Ninth Circuit Court still occurs over whether or not those pre-statehood withdrawals included tide and submerged lands. The Ninth Circuit has said unless Congress makes it very clear that it is withdrawing something when a state becomes a state, transfer of submerged lands to the state is precluded - and this is one of those areas. The Ninth Circuit has been all over the wall with us when it comes to the state's rights. There are two things. One is the Wilderness Area was created in 1980, actually, when ANILCA passed, which included the Tustumena - was part of that Wilderness Act. It's also one of those areas like the boundary waters where, in fact, the federal government exercises the authority given to them by Congress - the agency does - to regulate activities on state navigable waters, because they own the adjacent lands. I mean that's what the federal agencies are claiming in these cases. That's apparently what the Ninth Circuit kind of leaned on to.... They are saying that the Wilderness Act, itself, has a provision that says if [tide and submerged lands] become part of the Wilderness Act System, which was created in 1964, that it precludes commercial activities, except for certain recreational and other activities that are exempted. SENATOR SEEKINS related that the Utah case said withdrawals have to be very clear. MR. SOMERVILLE agreed and surmised that since this area was a pre-statehood withdrawal, federal agencies and courts have liberally interpreted their authority to manage lands that are adjacent to theirs when they, in fact, may only own the submerged lands, which haven't been litigated. CHAIR OGAN said that the Anchorage Daily News reported that this particular lawsuit was brought by the Wilderness Society and the Alaska Center for the Environment. SENATOR KIM ELTON asked if the appeal needs to be filed in a certain timeframe and is that a concern. SENATOR WAGONER reminded the committee that one of the critical times is the smolt release. I think it's going to be done. The problem is that the State of Alaska doesn't have the authority to do it; we had to have a federal official file the appeal. CHAIR OGAN wistfully jested, "You're welcome to stick them in Big Lake." SENATOR ELTON pointed out the date of the decision was December 30, 2003 and asked when the smolts are to be put into the lake. SENATOR WAGONER replied that the date isn't critical, but if the fry can't be put in Tustumena Lake, permits for other lakes would be needed from ADF&G. "You can't just take salmon smolt out and dump them in any lake." An appeal can be filed up to 90 days from the date of the decision. SENATOR ELTON asked, "Aren't there genetic requirements? You can't just take those smolt and dump them into another system, can you?" SENATOR WAGONER replied that ADF&G has to permit another system in which to release the smolt. SENATOR SEEKINS asked what this decision would do to ecotourism and commercial activities other than fishing. MR. SOMERVILLE reiterated that the Wilderness Act does have an exemption for recreational activities and the argument could be made that salmon enhancement is not commercial. He noted that Bill Horn, attorney for the majority, expressed his concern that the courts didn't clearly indicate whether commercial activities relate to commercial fishing only or to projects like this. Mr. Horn maintains that the recreational exemption needed to be clarified or commercial activities like ecotourism and guiding could be illegal. SENATOR WAGONER said it is estimated that the 6 million salmon fry will return 100,000 fish to be used by all groups. This isn't a commercial enterprise; this is done by Cook Inlet Aquaculture as an enhancement. Those fish come through the gillnet system, set nets, and drift gillnets. They come into a personal use net fishery in the mouth of the Kasilof River for personal use, sometimes a dip net fishery; in addition to that, there's a sport fishery. It's becoming a very viable sport fishery. So, it's a multiple use and as much a recreational use as it is a commercial use. That's the way that aquaculture basically operates. They're funded 100 percent by commercial funds, but at the same time - I can't totally speak for the aquaculture association, but I was one of the original board members founding it - and at that time our philosophy was, 'If we can't bring the fish through the commercial area and into sports fishing areas, then it wasn't a project that we really wanted to spend a lot of time and effort on.' And that's pretty well the way that Cook Inlet has gone, if you look at all the projects Cook Inlet does.... CHAIR OGAN said he wanted to move this bill as quickly as possible so that he could tell the Energy Council it is a priority issue. 3:55 p.m. MR. SOMERVILLE summarized that quite a bit has been going on including a request from the Speaker of the House and President of the Senate to Secretary Norton and Attorney General Ashcroft asking them to appeal this case. Governor Murkowski, Attorney General Renkes and other aquaculture associations have requested an appeal, as well. The initial reaction from the Department of Interior is that this one issue is no big deal and only applies to one lake in Alaska. However, Mr. Somerville noted an e-mail from another state saying the Ninth Circuit interpretation could be a problem for it, as well. CHAIR OGAN asked how the salmon fry are released. SENATOR WAGONER explained that the fry are transported by truck to the lake, taken on a boat away from the mouth of the lake and released. Predation by trout would be pretty horrendous if the fry were released near the mouth. MR. WAYNE REGELIN, Deputy Commissioner, Department of Fish and Game (ADF&G), said the administration supports the resolution. He had some language suggestions that would make it more accurate and powerful. He said that actually this issue has gone to the Ninth Circuit two times. The first time, a three-judge panel upheld the District Court ruling, which was appealed to an en banc group [the entire group] of 11 judges who overturned it. He thought the committee might want to insert a new whereas clause stating that and that the first decision was made by a vote of two to one and the last decision was made by an en banc vote of 11 to zero. Part of the reason was they never took up ANILCA (the Alaska Native Interest Land Claims Settlement Act). I think this 11-judge panel totally ignored all of the provisions of ANILCA that allow preexisting uses to continue - and I think that you might want to put in on page 2, line 20, something about that.... But the court ruled that the stocking program didn't compromise the wilderness values that they prohibited [if] it was commercial. The commercial activity occurs way down stream off of the wilderness area. He suggested making the first resolve clause on page 2 a little more general than just appeal to the Supreme Court. He felt that the Department of Justice did not want to take this issue to the Supreme Court, although taking the same issue back to the Ninth Circuit would be unusual after 11 judges ruled against it. He reiterated that the court totally ignored all the provisions and protections that ANILCA offered in 1980. MR. REGELIN updated the committee that The Wilderness Society has decided it doesn't want to be blamed for killing 6 million fish and has asked for a meeting with the Fish and Wildlife Service and other people to see if the smolt can be put back into Tustumena Lake one more time. He thought the Fish and Wildlife Service would probably do that. But we don't want this to be just a one-time thing about 6 million fish; we want the whole thing fixed, because it's a very onerous decision, we feel.... Secretary of Interior Norton has never been the problem. She has agreed with us from the very beginning. It's the Solicitor General that is reluctant to do this and his staff, because they don't feel it's a broad enough case for them to appeal to the Supreme Court. MR. REGELIN offered the committee a few wording changes for their review. CHAIR OGAN asked him to read the changes into the record. MR. REGELIN began by suggesting the following conceptual amendments: 1) Add a new whereas clause on page 1, line 14, that would say, "Whereas a three-judge panel of the Ninth Circuit affirmed the decision of the District Court" 2) Insert "eleven-person panel" on page 1, line 14 3) Insert "the Ninth Circuit concluded that the stocking of salmon fry did not compromise wilderness values, yet they ruled to prohibit the action on page 2, line 20 4) Insert "or to the full panel of the Supreme Court" after "Ninth Circuit" on page 2, line 30 CHAIR OGAN asked if the Department of Law had a position on the proposed amendments. MR. REGELIN replied that he hadn't had time to do that, but he had been working with them since this situation began and didn't think any of the legal issues had changed. MR. TED POPELY, Counsel for the Majority, suggested rephrasing the first resolve clause on page 2, line 30, [Mr. Regelin's item 4] to say: Be it resolved that the Alaska State Legislature respectfully requests that the Department of the Interior and the United States Department of Justice appeal the decision of the U.S. Court of Appeals, Ninth Circuit in The Wilderness Society case to an appropriate judicial body. SENATOR SEEKINS asked if copies of the resolution should also be sent to members of the Ninth Circuit (page 3). MR. POPELY opined that he didn't know if they would accept it and it certainly would not become a part of the record on an appeal and he thought it would probably be returned to the Legislature. SENATOR SEEKINS pointed out that the opinion was written by Ronald M. Gould and wondered if he was related to Rowan Gould, Regional Director, U.S. Fish and Wildlife Service who received a copy of The Wilderness Society's memorandum. SENATOR ELTON asked if the 6 million salmon fry could be released in any other lake. MR. REGELIN replied that there may be other places, but the analysis hasn't been finished, yet. Now that The Wilderness Society has backtracked, he didn't think it was a problem. SENATOR BEN STEVENS noted that a letter, dated February 18, from The Wilderness Society said a meeting was scheduled between Cook Inlet Aquaculture Association and the U.S. Fish and Wildlife Service and asked if it had taken place. MR. REGELIN said he didn't know. SENATOR WAGONER moved to adopt Mr. Regelin's conceptual amendments as amended by Mr. Popely. There were no objections and it was so ordered. CHAIR OGAN said he would make sure the committee got to look at the draft before it moved out. MR. JOHN FRENCH, Seward resident, said he is a former professor with the University of Alaska, School of Fisheries. He is now a self-employed toxicologist and represents the City of Seward on the CIAA Board. He supported SJR 26. The problem usually has not been the U.S. Fish and Wildlife Service. They have been permitting this release for a good number of years when they had jurisdiction. I think, from our point of view, and perhaps from the most onerous point of view throughout the nation, is the fact that the Circuit Court is defining it as a commercial operation. Cook Inlet Aquaculture Association is chartered as a non-profit under state statute. I'm not a commercial fisherman. One of the things I've been very impressed with since being on the board, which is since 1998, is the number of non-commercial fisheries related projects that Cook Inlet Aquaculture Association does. The bulk of the Cook Inlet Aquaculture Association money does, indeed, come from the Salmon Enhancement Tax and, therefore, from commercial fishermen. There is certainly a significant portion that comes from other [indisc.] such as the contract with the Seward Chamber of Commerce and the silvers that were put in Resurrection Bay and the more recent release over in Kachemak Bay that was paid for by the City of Homer, as I understand. It's clear that all the fish that go back into the Tustumena system - we are very careful with the fish that are released back into the wild are done in a manner that is consistent with good ecological risk management principles and maintaining the genetic stock. Tustumena fish go back into Tustumena.... It was mentioned to put Tustumena stock fish elsewhere will require an additional permitting process. The Department of Fish and Game could probably process it. Whether we could handle 6 million fish elsewhere - that's a different question. But, the really key issue is that the Tustumena Lake system is one of the most productive systems that [is] being enhanced in the Cook Inlet area. It's important not just to commercial fisheries, but to personal use sports fisheries and subsistence fisheries. Everybody uses these salmon.... It's very hard for us to understand why the Circuit Court chose to rule this as a commercial operation. It has also been pointed out earlier [that] all the commercial take of these fish occurs after they have not only left the wilderness area, but they've gone out to sea and come back again.... MR. DREW SPARLIN, CIAA, said the board had a meeting this morning and Gary Fandrei, Executive Director, CIAA, wrote a letter [in their packets]. He endorsed the previous speakers' comments and added: The Tustumena Lake Salmon Enhancement Project has been in continuous operation since 1974. It was developed and managed first by the Alaska Department of Fish and Game and is now managed by Cook Inlet Aquaculture Association. For over 29 years, this well designed project has provided fish for sport and personal use, subsistence and commercial fisheries in the heart of Alaska's Cook Inlet fisheries. It has evolved into a model of hatchery supported enhancement projects throughout Cook Inlet and the rest of the state. Cook Inlet Aquaculture Association is not just a commercial operation. We're formed under Alaska Statute 16.10.380 as a qualified non-profit regional association that includes all user groups representative of local communities. The only user group that is being restricted from the fish being produced in the Cook Inlet Aquaculture Association is the commercial fishery. It's open to users of all other uses. All fish that are released in Tustumena Lake are screened for disease prior to release. Another point is that all fish in Tustumena Lake are marked. CIAA annually monitors Tustumena Lake tributaries to assess the impact of the spawning populations. All fish that are released in Tustumena Lake are incubated at Trail Lakes Hatchery and the hatchery rearing is minimal. CHAIR OGAN asked him if he knew who the executive director of The Wilderness Society is. MR. SPARLIN replied that he didn't. CHAIR OGAN said he thought it was Nicole Whittington Evans and intimated that her husband is one of his most outspoken critics. MR. PAUL SHADURA, Kenai Peninsula Fisherman's Association (KPFA), noted that the state constitution allows for the promotion of fish development and aquaculture within the state. In 2002, 1.4 billion fry were released and 26 million fish were harvested in common property fisheries. CIAA provides benefits for commercial, sports, personal use and subsistence fisheries. In 2002, 22 percent of the common property sockeye salmon caught in Cook Inlet commercial salmon fisheries originated in the Cook Inlet Hatchery with an estimated value of $2 million to $3 million. KPFA is predominately comprised of set netters and many of their fishing families would be affected. "A 22 percent reduction would be extremely painful and deleterious to the economies and the local [indisc.] communities...." He explained that the Wilderness Act contains special provisions that allow exemptions for certain activities to be conducted. Congress has allowed cattle ranching, mining, oil exploration, water rights, corridors for utilities, towers, etc. "So there are some commercial activities, but they are let under special provisioning." MR. SHADURA pointed out that section 7 of the Submerged Water Act says, "Nothing in this act shall constitute an expressed or implied claim or denial on the part of the federal government as to its fish and except for state water laws." He also pointed out that the Alaska National Interest Lands Conservation Act (ANILCA), Title XIII [Aquaculture Section], says: In accordance with the goal of restoring and maintaining fish production in the State of Alaska to optimum sustained yield levels and in a manner which adequately assures protection, preservation, enhancement and rehabilitation of the wilderness resource, the Secretary of the Agriculture may permit fishery research, management, enhancement, and rehabilitation activities within national forest wilderness and national forest wilderness study areas designated by this Act. Subject to reasonable regulations, permanent improvements and facilities such as fishways, fish weirs, fish ladders, fish hatcheries, spawning channels, stream clearance, egg planting....' etc. As long as these activities are reasonable.... He said the National Aquaculture Act of 1980 authorizes development of a national plan for aquaculture and establishes the Department of Agriculture as the lead federal agency for coordination and dissemination of national aquaculture permit information. [END OF SIDE A] TAPE 04-12, SIDE B 4:25 MR. SHADURA also quoted a 1956 act that predated the Wilderness Act, which said: Congress declares that the fish, shellfish and wildlife resource of the nation make a material contribution to our national economy and food source supply to the health, recreation and wellbeing of our citizens.... MR. ROLAND MAW, United Cook Inlet Drift Association, agreed with previous testimony. He said that the 6 million fry produce about 100,000 fish that return to the Kasilof River in early May and continue through late August. During that time, the subsistence fishery, the dip net fishery and the commercial gillnet fishery work on them. However, his point is that the period of time the commercial fishermen are on the fish is less than half the time they are available to all citizens of the state. MR. KEN DUCKETT, Executive Director, United Southeast Alaska Gillnetters Association (USAG), supported SJR 26. He pointed out that activities in wilderness areas are coming under more and more attack. Fishing rights have been lost in Glacier Bay National Park and now there's this situation with enhancement. A number of fishing areas are immediately adjacent to wilderness areas and this is a trend that needs to be stopped. SENATOR WAGONER moved to pass CSSJR 26 (RES) from committee with attached fiscal note and individual recommendations. There were no objections and it was so ordered.