Story last updated at 2:10 p.m. Thursday, August 22, 2002

Mariculturists brave regulatory storm
by Sepp Jannotta
Staff Writer

photo: news
Bob Hartley at his floating oyster-sorting and harvesting dock in Peterson Bay.  
Editor's note: Local water taxi operators are often asked about the purpose of dozens of buoys clustered in the coves lining the south side of Kachemak Bay. The answer is simple: Oyster farms.

This is the second story in a four-part series that will elaborate on that answer, providing an in-depth look at the mariculture trade, Homer's hidden seafood industry.

While sitting at his floating oyster-sorting and harvesting dock in Peterson Bay recently, Bob Hartley talked fondly of his previous careers as a teacher and commercial fisherman.

But his new business, which allows him to produce a sustainable seafood product in his own back yard, has given him even more pride, he said. As he elaborated this point, he popped open an oyster and gulped it down.

While the delicious-tasting snack breaks offered by Hartley's current job are a major perk, Alaska's regulatory stance regarding the permitting of aquatic farm leases has left Hartley and many other shellfish growers with a sour taste.

Hartley's own Peterson Bay farm, which first went to seed in 1994, took two years of legal wrangling to clear the lease permit process. In the years since, the Alaska Department of Fish and Game has put a moratorium on new farms in Peterson Bay.

Officials representing the state uniformly contend that, when it comes to shellfish farming, they have simply been working to uphold the integrity of the state's critical habitat areas as well as protecting a constitutional right guaranteeing all Alaskans equal access to the state's common-property resources.

The proponents of aquatic farming look at the history of their fledgling industry and see a set of obstacles thrown across their path. Most troubling, according to Hartley, is that Fish and Game is continually ramping up its regulations on aquatic farms in what he sees as clear attempts to stifle the industry not because of biological concerns but because of political and philosophical prejudices.

Clem Tillion, the former fish czar under Gov. Wally Hickel (1990-1994), agreed with Hartley, saying that the issue for fisheries managers stemmed from deeper biases regarding mariculture.

"I thought that the finfish (farming) ban was a statewide vasectomy," Tillion said. "Alaskans have always harvested from the wild and been hunters of game. We don't like the idea of facing farming."

Trasky said the department is stuck in a no-win situation when it comes to satisfying all the user groups of an area like Kachemak Bay.

"Our approach has always been the same," said Lance Trasky, a Fish and Game regional supervisor. "We've permitted it when it's consistent with the purpose of the (Kachemak Bay State) Critical Habitat Area.

"We don't have an adversarial relationship with them or anybody, but you tell someone 'no' and you're the bad guy."

But Hartley and many other mariculture advocates feel strongly that they do have a foe in Fish and Game, which in 1999 put a hold on the review of a number of permit applications, including several in Kachemak Bay.

Tillion, who has been a major advocate for the industry along the legislative trail in Juneau, was blunt in his assessment of the relationship between the department and the shellfish growers.

"The bureaucrat is the enemy of the entrepreneur," he said.

Two years later, the 1999 applications were officially denied, and on-bottom clam farming was outlawed in Kachemak Bay and heavily restricted elsewhere in the state.

Hartley said this decision was seen by farmers across the state as a blow to the long-term viability and profitability of the industry.

"It's important that we stay abreast of what's going on (in Juneau) or they'll blindside us," Halibut Cove oyster farmer Kevin Sidelinger said of the bureaucracy in general.

Hartley, who spends some time lobbying for aquatic farmers in Juneau during the legislative session, said he found fault with the fact that Fish and Game's habitat people don't spend enough time actually looking into how the farms operate. Hartley particularly faulted Trasky, who he said finally made it down to inspect a Kachemak Bay oyster farm last year, a decade after the permitting problems first cropped up.

Even the state Legislature raised questions about the permit application process for shellfish farmers. Following the contentious permit opening in 1999, lawmakers convened a legislative audit to investigate whether any state agencies were inhibiting the implementation of the Aquatic Farm Act, passed in 1988.

"After conducting our initial audit survey fieldwork, we determined the central issues of concern involved the oversight and permitting activities of (the Department of Fish and Game)," the legislative audit reported.

The audit stopped short of reprimanding Fish and Game for its regulatory policies, though it did recommend the department do some legal streamlining to its regulations with regard to any conflicts that existed between its mandates and the Aquatic Farm Act.

But even as the Legislature was discussing the issue, Fish and Game filed its new set of regulations regarding permits for on-bottom farming.

Trasky echoed the department's 1991 press release when he said in a recent phone interview that the ban on on-bottom farming was important for Kachemak Bay because the practice could deny access in certain areas to wildlife and subsistence clammers alike.

Lawyers for a group of would-be Southeast Alaska geoduck farmers, who filed for an injunction of the ruling and lost, are busy preparing for a hearing with the Alaska Supreme Court, scheduled to reach the bench sometime this year.

A favorable ruling from the court could have implications for the future of on-bottom farming in Kachemak Bay.

Ultimately, Hartley said, fisheries managers wring their hands over the idea of transferring ownership of any wild populations of common-property clams that might exist on an on-bottom farm's beach.

But to grant an on-bottom permit for a beach that doesn't have clams is akin to putting up a sale of halibut IFQs for Kenai Lake.

"In order to aquatic farm, you must go into a place that will support an aquatic farm," Hartley said.

And he balked at the notion that there is any conflict of interest between the state constitution and the implementation of the Aquatic Farm Act, which calls for the state to foster the mariculture industry.

"The constitution calls for the development of the state's resources," he said flatly.

For Hartley, economics is where a major issue lies. With the continued decline in the commercial salmon fishing industry, Hartley sees seasonal aquatic farming as a way to help fishermen stay in the business they love, which is also seasonal.

He went on to point out that there is a lot of talk and money being directed at the idea of retraining fishermen for other lines of work.

This is the principle behind a Sea Grant program designed by University of Alaska Fairbanks' fisheries professor Ray LaRonde. The project, which has raised more than $80,000 in grant and match funds, according to the Alaska Sea Grant Web site, intends to help out-of-work loggers on Prince of Wales Island retrain as aquatic farmers and in the process give a trial run to new, more user-friendly permitting process.

The Alaska Sea Grant Web site's grant summary reads:

"Current regulations to obtain an aquatic farming permit are the most cumbersome in the nation. Applications for aquatic farm permits are only accepted in even-numbered years, and the yearlong review process significantly slows industry growth. The review process, often fraught with real and perceived conflict, is financially and emotionally demanding."

If the Prince of Wales project is successful, it might be a blueprint for helping struggling fishermen to get started in the business.

"My (argument) basically rests with the fact that shellfish farming goes so well with commercial fishing," Hartley said. "These folks are hurting, our coastal villages are hurting.

"To limit the availability of the resources is wrong."