Legislature(2003 - 2004)

02/20/2004 03:35 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                            

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