Alaska members of council appeal recusals

The North Pacific Fishery Management Council will spend the first four days of its weeklong meeting in Sitka beginning June 3 deciding on a series of deep cuts in the halibut bycatch allocation for the Bering Sea groundfish bottom-trawl fleet, but it may do so without a majority of the votes on the final decision coming from the Alaska delegation.

The council, which has 11 members with six appointed from Alaska, could hold a final vote without two Alaska members, David Long and Simon Kinneen, unless the National Oceanic and Atmospheric Administration, or NOAA, reconsiders its decision to recommend them for recusal.

The council is considering cuts of up to 50 percent to the current annual bycatch allocation of 7.8 million pounds to the Amendment 80 fleet, a group of about 18 catcher-processor trawlers that harvest flatfish species.

Kinneen and Long were both recommended for recusal from the final vote on May 12 by the council’s designated NOAA General Counsels, Lauren Smoker and John Lepore, in consultation with the Department of Commerce Office of the General Counsel, Ethics Law and Programs Division.

Kinneen was recused from the June meeting based on the fishing interests employer, the Norton Sound Economic Development Corp., or NSEDC.

NSEDC is one of six Community Development Quota groups made up of 65 Western Alaska villages that collectively receive 10 percent of the Bering Sea and Aleutian Islands harvest.

NSEDC also owns subsidiaries that collectively harvest more than 435.6 million pounds, or 10 percent of the groundfish harvest. NSEDC wholly owns Siu Alaska Corp., which partially owns Glacier Fish Co., BSAI Partners LLC, and Glacier Bay Fisheries LLC. Glacier Fish is part owner of Iquique U.S. LLC.

Long works a captain and fish master for Glacier Fish Co., and is recused for the same 10 percent harvest interest as Kinneen.

Most of that fishery tonnage is pollock, which forms one of the two main objections to the recusals from Alaska Department of Fish and Game Commissioner Sam Cotten, who also sits on the council, Kinneen, and Long.

Kinneen, Long and Cotten sent letters on May 22 to Mary Beth Ward at the NOAA Office of the General Counsel requesting a review of the recusals.

“For a council member to be recused from voting on a council decision,” wrote Cotten, “there must be a ‘close causal link between the decision and an expected and substantially disproportionate benefit to the (member’s) financial interest.’ Here, as NOAA repeatedly emphasized, the council decision will have ‘no direct effect’ on the pollock fishery.”

Unless the decision is overturned, the recusals will meaningfully shift the balance of votes on the council for this final action.

“This puts a really undue burden on Alaska,” Long said. “We have six voting members, and if two of us are recused we no longer have our majority. And you want to have all your members voting on an issue like this.”

Other than the six Alaska seats, three members are reserved for Washington state representatives, one for an Oregon representative, and one for the Alaska Region administrator of the National Marine Fisheries Service, or NMFS.

With Alaska delegates Kinneen and Long recused from the vote, the final decision will be between four Alaskans, four from the Pacific Northwest, and the federal seat.

Jim Balsiger, the Alaska Region NFMS administrator, will also be removed from the final vote. Balsiger’s wife, Heather McCarty, lobbies for one of the groups directly impacted by the decision, the Central Bering Sea Fishermen’s Association. CBFSA is the CDQ group for St. Paul, which has pushed hard for the bycatch reductions as a particularly hard-hit halibut-dependent community.

NMFS Alaska Region Assistant Administrator Glenn Merrill will serve in Balsiger’s place.

Most recently in that capacity, Merrill voted with the Pacific Northwest delegation to oppose an amendment to the final Bering Sea chinook bycatch reduction package in April that would have lowered the fleet’s hard cap from the original motion.

The recusals

Kinneen and Long both dispute the basis for the recusals, which they said is stretching the concept of “conflict of interest” to its extreme.

According to Smoker, fishery management council members are exempt from conflict of interest laws that might affect other federal employees. However, in 1998, Congress wrote a list of exceptions to the exemptions and incorporated a list of recusal requirements effective as of 1999.

According to the statute, “no affected individual may vote on any council decision that would have a significant and predictable effect on a financial interest disclosed in his/her report.”

To make the grade for recusal, council members must have significant interest in the fishery about which they will make a vote. General counsel defines “significant interest” as a greater than 10 percent interest in the total harvest of the fishery or sector of the fishery, a greater than 10 percent interesting the marketing of processing of the total harvest, of a full of partial ownership of more than 10 percent of the vessels using the same gear type within the fishery.

Smoker said that since 1999, the North Pacific council has made 10 or 15 recusals.

The Sitka meeting will make three in as many council meetings. Kinneen was recused from the council’s April meeting, where it voted in favor of chinook salmon bycatch cap reductions for the Bering Sea pollock fleet.

Kinneen made the same objection to his recusal from the April council meeting, which had several key amendments come down to a single vote.

“They’ve included pollock harvest in the groundfish goals,” said Kinneen. “There’s nothing in the action here that could be restraining on pollock harvest. It’s included in those other fisheries, but that pollock harvest could be impacted is not reality.”

The three council members also object to the aggregation of subsidiaries in recusal considerations.

“Because the Council will make individual decisions on sectors of fisheries under the various options, the recusal analysis should have been conducted by individual fishery sector,” Cotten wrote.

All three council members requested that NOAA General Counsel make its decision before the June 2 meeting.

The issue

The International Pacific Halibut Commission manages directed halibut in the North Pacific. The North Pacific council manages bycatch. As the biomass of legally harvestable halibut biomass in the North Pacific has declined, the allocations for the directed fishery have dipped to low levels while the bycatch remained static.

The Bering Sea and Aleutian Islands groundfish fleet now takes the bulk of halibut removals. At the current projected harvest level, International Pacific Halibut Commission biologists estimate that 93 percent of all 2015 halibut removals in the Bering Sea would be from bycatch, not the directed halibut fishery.

Directed halibut fishermen who have seen their quotas crash over the last decade favor heavy bycatch cuts.

The groundfish fleet, which could potentially have millions of dollars cut from its income stream if forced to close by reaching reduced bycatch caps, favors voluntary measures.

The North Pacific council voted on Feb. 8 to release an amended table of halibut bycatch reduction options for public review. The council will take final action on the reduction proposals at its Sitka meeting.

The motion added options for 40 percent, 45 percent and 50 percent cuts to each of the originally proposed reductions and was part of a larger package of halibut bycatch reduction proposals and studies that received no action. It was introduced by council member Duncan Fields of Kodiak and passed with a 9-2 vote.

Since then, public input has swelled.

The Alaska legislature’s coastal representatives sent a letter to the North Pacific Fishery Management Council expressing support for 50 percent halibut bycatch cap reductions for the groundfish fleet in the Bering Sea and Aleutian Islands.

“Over the past decade,” the legislators wrote, “more than 62 million pounds of halibut has been caught, killed, and discarded as bycatch in the Bering Sea/Aleutian Islands. During the same period, landings of halibut as the target species have declined from an already alarmingly small 52 percent of the total removals to only 34 percent of removals. This startling dynamic, in an ever worsening state, has continued for too long.”

The letter was signed by Sens. Lyman Hoffman, Donny Olson, Dennis Egan, and Peter Micciche, along with Reps. Bryce Edgmon, Bob Herron, Neal Foster, Cathy Munoz, Paul Seaton, Dan Ortiz, Jonathon Kreiss-Tompkins, and Jim Colver.

In Washington, a petition implored Gov. Jay Inslee to intervene on behalf of the jobs brought to the state by the trawlers that operate in the Bering Sea.

05/27/2015 - 1:53pm