Mythbusting the halibut split and the federal ANWR argument

Pick an acronym, CSP or ANWR, and it’s DVAOA.

That’s Déjà Vu All Over Again.

Opposition to the proposed halibut Catch Sharing Plan isn’t as old as the fight against oil and gas development on the coastal plain of the Arctic National Wildlife Refuge, but neither side has called a new play in years.

I’ll start with the freshest debate over how the halibut harvest should be split between charter and commercial fishermen, even though it is really a thawed leftover from the 2011 campaign led by the recreational fishing industry that prevented the previous iteration of the Catch Sharing Plan from taking effect.

The charter industry had several good arguments against the last version of the halibut split passed by the North Pacific Fishery Management Council in 2008 and scheduled to start in 2012. Chief among those concerns was a management “matrix” that automatically implemented certain daily bag limit restrictions based on abundance levels.

Now, though, two years later with another rule out for the last round of comments before a 2014 implementation, the charter stakeholders are pushing the exact same talking points as they did in 2011 as if the council didn’t spend a year incorporating the majority of their concerns into a new plan and giving them more management flexibility along with an even greater share of the harvest.

You’ve probably heard this one: If the CSP is implemented, anglers fishing out of Southcentral ports are going to be restricted to one fish per day compared to the current bag limit of two.

What you probably haven’t heard is that the rigid management “matrix” that could have forced such a restriction was eliminated in favor of an annual selection of bag and size limits that first originate with a committee of charter stakeholders before being recommended by the council and ultimately approved by the International Pacific Halibut Commission.

That means that the only way a one-fish bag limit will happen in Southcentral is either the charter sector suggests it or the exploitable amount of halibut declines to a point where the projected sport harvest will exceed their allocation and the council must recommend, or the IPHC must pass, something less than a two-fish limit.

The first step down from a two-fish limit, though, as the charter sector well knows, would likely be a two-fish limit with a size restriction on the second fish. That’s a far cry from what we’re hearing now about it being a certainty Southcentral anglers will have their bag limit cut in half next year if this plan is implemented.

Another one you may have heard is that this isn’t a conservation plan. That’s true; it isn’t. The problem with that argument is that it isn’t being billed as a conservation plan.

It is a plan to equitably share the burden of conservation during times of low abundance, and provide greater opportunity for both sectors at times of high abundance.

The conservation responsibility for halibut is coming from the harvest cuts by the IPHC, and to a much lesser degree from belated North Pacific council actions to finally curb bycatch of halibut by bottom trawlers in the Gulf of Alaska.

Those conservation burdens to date have been absorbed almost entirely by the commercial halibut fleet that has seen quota cuts ranging from 50 percent to 80 percent since 2005 while the charter sector has simultaneously gained an ever-growing share of the overall harvest under the status quo guideline harvest levels that were set during a period of high abundance.

According to the proposed rule, from 2008 to 2012, the Southeast commercial fishery declined from 60.2 percent of the yield to 43.1 percent as the charter harvest increased from 14.3 percent to 15.9 percent over the same period.

In Southcentral, the commercial fishery declined from 76.8 percent of the yield to 60.3 percent while the charter harvest increased from 12.6 percent to 15.7 percent.

That leads nicely into the other well-worn case against the proposed split between commercial and charter fishermen: that this is a reallocation of fish away from the charter fleet to the commercial fleet.

Unfortunately for that argument, the reallocation has already happened, and it has gone entirely in the direction of the charter fleet for the past 20 years.

In 1995, the charter take was 9 percent of the harvest in Southeast and 12 percent in Southcentral. Under the proposed CSP, the allocations range from 15.9 percent to 18.3 percent in Southeast and 14 percent to 19.9 percent in Southcentral.

Given the documented history of a fishery that dates to the late 1800s, describing the proposed percentages as a reallocation is revisionist at best and disingenuous at worst.

It is also important to remember how we got here. The reason momentum built to a more formal allocation of halibut between sectors based on abundance is because the charter fleet consistently demonstrated it can and will exceed its allocation with enough angler demand regardless of the stock status.

From 2004 to 2010, the Southeast charter sector exceeded its annual allocations by a cumulative 3.4 million pounds.

For what it’s worth, those pounds were deducted from the following year’s harvest and taken away from the commercial fleet at a time of the sharpest quota cuts in 30 years.

To date, nobody from the charter fleet has reimbursed anyone for those fish, yet they complain now about the possibility of leasing pounds from commercial fishermen to stay within their limits.

In Southcentral, the problem of exceeding the allocation was not as bad, but the charter sector did go over by about 270,000 pounds from 2004 to 2007.

No other fisherman is allowed to exceed an allocation the way the charter sector has, thanks to the council decisions long ago to not change rules for management in-season to preserve consistent opportunity.

Finally, the charter sector will point to economic impacts and to be sure, Alaska needs a vibrant sport fleet. But the sport industry acts like the commercial fishermen are not as vital to our coastal communities as they are.

According to 2010 data, more than 75 percent of halibut permit holders are Alaskans and while the halibut fishery is less than 1 percent of the total volume of the Alaska catch, it represents 12 percent of the value.

That’s a lot of fish taxes to communities, management fees and observer fees, crew and processing jobs, small businesses and families they are supporting. They deserve both sides of this story to be told with facts and not myths.

ANWR

It came as no surprise the Interior Department promptly denied the State of Alaska permit application to conduct 3-D seismic exploration on the coastal plain of ANWR submitted July 9.

The July 26 letter to Gov. Sean Parnell clings to the weak assertion that authority to conduct exploration contained in the Alaska National Interest Land Conservation Act expired in 1987 with an Interior Department report to Congress.

That argument rests with the interpretation of ANILCA that any exploration other than what culminated in the 1987 report would require Congressional authorization.

In support of that position, Fish and Wildlife Service cites a 2001 Interior Solicitor General opinion issued two days before President Bill Clinton (who vetoed opening ANWR in 1995) left office.

Although that Solicitor General opinion expressly notes that ANILCA contains neither a sunset date for exploration nor a sunset date for the updating of exploratory guidelines, it nevertheless concludes that such a plain reading of the statute must be incorrect.

Rather, the 2001 opinion creates a convoluted view of the statute — well worthy of the Parser-in-Chief from whose administration it originated — based on the meaning of the word “further.”

ANILCA called for the Interior Department to submit a report that contained, among other things: “the recommendations of the Secretary with respect to whether further exploration for, and the development and production of, oil and gas within the coastal plain should be permitted ...”

The Solicitor General opinion goes on to cite Alternative C in that 1987 report to Congress, in which then-Secretary Donald Paul Hodel considered whether to recommend “further exploration only, including exploratory drilling.”

The Interior Department would have us believe that the word “further” means simply “more” exploration in a temporal or numeric sense.

Inspector Gadget would say that’s a stretch.

While the feds bicker over what the meaning of the word “is” is, let me offer a more straightforward view: “further” means activities that go beyond the scope of what is authorized in ANILCA limiting exploration to seismic and geophysical work that does not disturb the surface.

That would explain why the clause “including exploratory drilling” was part of Alternative C in Hodel’s 1987 report, and why “further exploration” was linked directly to “development and production” of oil and gas in that section of ANILCA.

In both instances cited by the Solicitor General, “further exploration” is immediately supplemented or clarified by clauses beginning with “and” or “including.” In other words, different from ANILCA.

In Hodel’s comments rejecting Alternative C, he noted that without a formal leasing and development program, private companies would have no economic incentive to conduct exploration on their own.He then notes, citing failures in the National Petroleum Reserve-Alaska, that the feds are inept at conducting their own, targeted exploration as part of a development program.

Clearly, Congressional authorization is required for a development plan — either to direct federal agencies or to incentivize private companies — and for exploration activity such as drilling that is not allowed under ANILCA.

But that isn’t what Parnell is proposing. He’s asking to do the exact kind of noninvasive exploration authorized in ANILCA and nothing more. The law requires Secretary Sally Jewell to approve it whether she likes it or not.

It defies common sense to believe Congress wrangled over the coastal plain for years in the drafting of ANILCA with the intent that the government would never conduct another assessment of the oil and gas resources other than a couple years in the 1980s, or that if and when it decided to open it to development Congress would have to rely on that old data without an updated survey.

This fight is far from over, and the hope here is the Parnell Administration can force this White House to follow the law for once.

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.

Updated: 
12/06/2016 - 2:51pm

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