At issue is whether the role of the state Department of Fish and Game to set the total allowable catch, or TAC, satisfies the legal requirements in the 2007 revisions to the Magnuson Stevens Act that governs federal fisheries policy.

Since 1989, the state has set the TAC for Alaska's Bering Sea crab fisheries under a joint agreement with the federal government, which governs the waters more than three miles off the coast.

At the fish council's June meeting in Sitka, the council adopted the status quo as its preliminary preferred alternative for crab management with the caveat that an interim analysis before the October meeting would determine where the state management plan needs to be "tweaked" to conform with the revised MSA.

In an 8-3 vote spearheaded by Fish and Game Commissioner and council member Denby Lloyd, the council set aside complex alternative management plans that would have essentially removed the state's authority to set the TAC and placed responsibility for setting annual catch limits in the hands of the National Marine Fisheries Service.

Fearing that federal fisheries managers would set overly conservative harvest levels, industry representatives and delegates from crab hubs Unalaska and St. Paul voiced strong opposition to any plan that removed crab management from Fish and Game.

Arni Thomson, executive director of the Alaska Crab Coalition, noted the state's flexibility in its management plan that allows for quick response on actions such as in-season closure areas. Because of federal public notice requirements, the National Marine Fisheries Service would not be as nimble in responding to changing conditions in the fishery.

To protect against overfishing, the revised MSA requires built-in buffers to the annual catch limit, or ACL. Thomson said the state management team already includes scientific factors to account for uncertainty in stock assessment or bycatch.

"(The crab coalition) believes the Alaska Board of Fisheries has de facto codified the conservation buffers into state regulations as noted in harvest strategies for Bering Sea king, snow and tanner crab fisheries," he said, later adding in his testimony that the state appears to be in compliance with the MSA.

While introducing his motion to make continued state management the preliminary preferred alternative, Lloyd said his goal was to reverse the "rush to judgment" that the revised requirements under the MSA meant a new system of setting harvest levels controlled by the federal government was needed.

John Henderschedt of Phoenix Processor LP, who represents the state of Washington on the council, objected to Lloyd's motion to make status quo the preferred alternative and said it was a "distraction" from properly analyzing other alternatives prepared by council staff.

Lloyd said he felt the real distraction was pursuing a new alphabet soup of terminology spelled out in the revised MSA, such as ACLs and OFLs (overfishing limits).

"We have followed a rabbit trail to chase specific terms of art that have derived from those amendments without considering how our existing management could be reconfigured if necessary to comply with the requirements," Lloyd said in responding to Henderschedt. "We've gone off and developed some very complex alternatives that go directly to those new terms of art, but I believe we've been distracted by the idea that something new had to be created.

"The burden of preference is important to get serious attention from the analysts and from agency leadership to allocate the resources necessary to fully flesh out the opportunities under status quo to meet these mandates," he added.

ACL or TAC, former mayor of Unalaska Frank Kelty said he didn't care what the crab management plan was called as long as the state was in charge of it.

"I don't care if you call it the ADF&G ACL setting process," Kelty said. "That would be fine with me. But I don't want to see another layer of conservation put in there where we have these (harvests) ratcheted down. We won't have any fisheries at all. That's going to be a major blow to our local economy and certainly to St. Paul where snow crab is the major resource for that community. We support moving forward with ADF&G as the major player."

Henderschedt and Jim Balsinger, a voting member of the council representing the National Oceanic and Atmospheric Administration that governs the eight regional fisheries councils, both hinted the state management might not pass legal muster even if it satisfies the spirit or goals of MSA.

Henderschedt said it could send a "misleading signal to the public" to adopt state management as the preliminary preferred alternative and Balsinger said any plan would ultimately have to be approved by the U.S. Secretary of Commerce.

"The selection of (status quo) at this time comes with a lot of baggage, a lot of dynamics that we don't need to introduce into the process at this time," Henderschedt said.

Balsinger said that it was "perhaps an error" to not analyze whether the current state management plan satisfied the MSA before crafting alternatives putting harvest levels under federal control.

"Nevertheless," Balsinger said, "it is not clear to me that the existing status quo can, with minor tweaks, meet the legal requirements. It's not clear to me that status quo is what we want to end up with."

Duncan Fields of Kodiak said the debate over the legal minutia of the MSA missed the point.

"We've lost sight of the fundamental principle in Magnuson, which was to establish a mechanism for annual catch limits at a level that overfishing does not occur," Fields said. "We've also lost sight of (the Fishery Management Plan) delegates authority to state under the program. I believe overfishing has not occurred in the crab fishery and the state's program is equipped to meet the broad-based standard of Magnuson."