Legislature(2015 - 2016)CAPITOL 120
02/19/2015 10:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB103 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 103 | TELECONFERENCED | |
HB 103-BOARDS OF FISH/GAME REGULATION AUTHORITY
10:10:02 AM
CHAIR STUTES announced that the only order of business would be
HOUSE BILL NO. 103, "An Act relating to the authority of the
Board of Fisheries and the Board of Game to adopt, amend, or
repeal regulations."
10:11:01 AM
REPRESENTATIVE TAMMY WILSON, Alaska State Legislature, provided
an introduction to HB 103, paraphrasing from a prepared
statement, which read as follows [original punctuation
provided]:
The clear intent of our constitutional framers and
early legislators was to include the public in the
process of managing and allocating our fish and game
resources. Alaska is unique, for example, among all
states for operating a system of fish and game
advisory committees (ACs).
Unfortunately, this intent toward public participation
has in recent years been frustrated by a commingling
of the functions of the boards of fish and game with
the Department of Fish and Game, the result of which
has been public exclusion.
The legislature is empowered in Art. 8, Sec. 2 of the
Alaska Constitution with managing and allocating all
resources, including fish and game. The legislature
has in turn statutorily delegated that management
authority by creating the Department of Fish and Game
in the executive branch to manage fish and game
resources. The legislature also delegated the
allocation authority by creating the Board of
Fisheries and Game, but they did not put these boards
in the executive branch.
Current statute and regulation require proposals for
the allocation of fish and game resources to be
submitted by a published deadline before the board
meeting. Members of the public, advisory committees,
the department, and the board can submit such
proposals. Typically, these proposals are published
well ahead of the meeting for the interested public to
scrutinize, and if they deem necessary, offer input.
The problem that has developed is that board factions,
using department staff for support, are developing
proposals outside of the public purview. While
individual members of the public and ACs must submit
their proposals in advance of board meetings, the
board factions and department staff can work on
proposal language with no notice to the public. This
language is often adopted as board regulation without
the public having opportunity to engage in its
development.
HB 103 will solve this problem and again put the
public on equal footing with the government; as well
as, introduce transparency to our public process.
10:13:15 AM
REPRESENTATIVE WILSON directed attention to the committee packet
and the handout titled, "Public Participation and the Board
Process," illustrating the complex course to which a public
proposal is subjected prior to being heard by the board.
However, the board generated proposals (BOGs) are not subject to
the same process and review, often not being heard by the local
advisory committees or allowing time for witnesses to vet the
proposals appropriately for comment. She pointed out that the
BOGs aren't necessarily controversial, but should still be
subject to a process similar to public submissions and minimally
be reviewed for recommendation by a local advisory committee.
10:15:38 AM
REPRESENTATIVE HERRON observed that similar legislation has been
proposed in years past, and expressed concern for the viability
of HB 103. He asked how it differs from previously introduced
legislation.
REPRESENTATIVE WILSON pointed out that the board could make the
change autonomously, avoiding statutory action, and agreed to
provide further information.
REPRESENTATIVE HERRON directed attention to the committee
packet, and the memo dated 2/9/15, from T. L. Alpheus Bullard,
Legislative Counsel, addressed to Representative Tammie Wilson,
with the subject line, "Bill prohibiting the Board of Fish and
the Board of Game from proposing regulations (Work Order No. 29-
LS0475), and asked for comment on the legal opinion.
REPRESENTATIVE WILSON responded that the opinion indicates a
concern for restricting the boards of fish and game. The bill
imposes restrictions based on constituent feedback and user
group concerns, who report being shafted when it comes to public
input. The constitutional mandate to the boards is that they
hear public comment, hence the concern. The conversation is
long overdue for how the public process can be reinstated to a
workable forum, she opined.
10:18:53 AM
REPRESENTATIVE ORTIZ asked about perceived significant harms,
and requested some examples.
REPRESENTATIVE WILSON provided an example regarding the
management of [Dall] sheep. At a recent Board of Game (BOG)
meeting, only three members were in attendance and testimony was
by invitation only, during the crafting of a proposal.
10:20:22 AM
REPRESENTATIVE HERRON conjectured that if there were a closed
door meeting of only three board members crafting regulation, it
would represent a violation of the Sunshine [Act] [Freedom of
Information Act (FOIA)].
REPRESENTATIVE WILSON stated that comment from legal services is
forthcoming.
REPRESENTATIVE HERRON opined that the Sunshine [Act] appears to
have been violated, and such action constitutes an attack on the
public process. Further, he found it interesting that the
Fairbanks advisory committee feels locked out of the decision
making process, and recalled that this is not a new concern.
Seeking the help of locals is considered important, he said, and
expressed appreciation for the bill being brought forward.
10:23:50 AM
CHAIR STUTES opened public testimony.
10:24:18 AM
CHRIS GARCIA stated support for HB 103, and expressed
appreciation for the simplicity of the bill. He opined that the
public has been slowly removed from the board process, and urged
passage.
10:25:57 AM
ROBERT "BOB" MERCHANT stated support for HB 103, and expressed
appreciation to the sponsor for bringing the issue forward, as
it is sorely needed. He said that under the current scenario,
the Board of Fisheries (BOF) has adopted the habit of generating
proposals during meetings; effectively eliminating the 30 day
reparation and response period. The BOF has assumed an attitude
of unilateral authority, ramrodding proposals through, and
cutting out the public input which, he opined serves special
interest groups. He urged passage of HB 103.
10:28:39 AM
ROD ARNO, Executive Director, Alaska Outdoor Council, stated
support for HB 103, and said it is important to protect the fish
and game management goals. Board generated proposals discourage
public input and serve special interest groups. The Outdoor
Council urges passage.
10:30:53 AM
DAN ANDERSON stated support for HB 103, and expressed concern
for the advisory committee members that receive little support
in the process, when the board generates in-house proposals. It
is difficult to provide appropriate response and input given the
current situation. He applauded the bill and urged passage.
10:32:29 AM
GARLAND BLANCHARD stated support for HB 103, and said it is time
to bring this issue forward and remedy what is occurring at
board meetings. The advisory committee members are currently
being ignored at the meetings and the power is removed from the
people, he opined and stressed that the opportunity for public
comment needs to be restored. Out of cycle, emergency board
meetings have been held and decisions made without the input of
the Alaska Department of Fish & Game (ADF&G), whose opinion
should also be heard. He urged passage of HB 103.
10:35:19 AM
STEVEN FLORY, Member, Anchorage Advisory Committee, stated
support for HB 103, and said at one time the local advisory
committees offered support to the regional advisory committees
and proposals were considered at those levels prior to being
forwarded to the board. The regional committees were
eliminated, by ADF&G in a cost cutting measure, and the
approving authority was altered. The committee he represents
shares the sentiment that the bill does not go far enough and
suggested the inclusion of language that proposals must receive
approval by one of the 84 advisory committees. The BOGs become
law with little or no input from the public or advisory
committees. He provided several anecdotal examples of how
regulations are being affected and lack vetting. Further, he
reported that the chairman of the BOG recently opined that the
advisory committees should be dissolved. The board also
generates working groups, as a means to get proposals before the
board, further circumventing the process. He urged passage of
HB 103.
10:40:20 AM
MIKE TINKER, Member, Fairbanks Advisory Committee, stated
support for HB 103, paraphrasing from a prepared statement,
which read as follows [original punctuation provided]:
I have been working with the board of fisheries for
nearly 30 years. I am a long serving member of the
Fairbanks Fish and Game Advisory Committee and an
active member of several outdoor organizations.
I'm here this morning to testify on HB 103. It solves
an evolving problem that has been getting worse over
time. Our fish and game regulatory system is set up
with checks and balances. The Department is the
manager, that is, the keeper of the biology and
harvest information. The Board of Fisheries, charged
with allocating the fish resources not necessary for
sustaining the populations, is the "judge" for which
users can harvest and what the limits of that harvest
can be. In their jargon, they set seasons, methods
and means and bag limits. The public is represented
by community elected advisory committees, individuals
and special interest organizations. Proposals for
regulatory change are "called for" by the board(s).
The Board of Game has a similar responsibility for
wildlife allocation.
In recent years the boards have developed a "short
cut" through their processes they call Board Generated
Proposals. Looking at an issue, or multiple proposals
a board will try to construct a proposal (which is
their definition for a draft change to the
regulation(s). The problem is that BGPs frequently
bypass the advisory committee and public review and
comment. Examples have been drafted by the boards or
a few members and then noticed and scheduled for
discussion and action. By the time the ACs and
individuals are aware of the actual language, it is
too late to even have an AC meeting and provide
meaningful comments on whether or not the BGP solves
the regulatory question on the subject.
This process results in frustration from the non-board
member participants in the checks and balances system.
The clearest example is the Joint Boards deciding to
write themselves a policy for Criteria to Use When
Drafting BGPs. That policy (a guideline) was drafted,
discussed only by the Joint Boards and adopted all on
October 16, 2013. There was no public input, no
advisory committee input and the action was taken in
the "miscellaneous" portion of the agenda, i.e., not
publically noticed.
Representative Wilson's HB 103 seeks to limit the
sources of regulatory change proposals to those
sources that were provided in regulation and used
prior to the creation and use of BGPs. As a member of
the public and an AC member, I am in favor of this
limitation. If HB 103 is passed, the check and
balance system written by our state's constitutional
and statutory authors will be preserved. There are
adequate protections for the boards to be able to deal
with emergencies and their normal meeting agenda can
accommodate last minute issues without excepting the
public and advisory committees.
10:44:50 AM
AL BARRETTE, Member, Fairbanks Advisory Committee, stated
support for HB 103, and said this bill would close a loophole
that allows procedural posturing, or gaming of the system. He
described the board generated proposal (BGP) process that is
currently occurring regarding ACR's, as described by the
previous witness, and stressed that these board actions do not
uphold appropriate standards. Nor, he said does the board
follow self-imposed proposal criteria. Recalling a recent board
statement, he said:
I think the board said it very clearly in their
statement of: 'What is the issue that you'd like to
address?' And in the middle of their paragraph they
said: 'The flexibility of the board, to allow an
agenda change request, should not be used as means to
submit a proposal, for a scheduled meeting, after the
deadline is established for submitting in-cycle
proposals.'
MR. BARRETTE observed that, as a long standing ACR member, this
statement indicates that the board is holding the public to a
standard, as described in regulation, but the board retains the
freedom to not be bound by that policy or regulation. If they
were truly looking out for the state's best interest, he opined,
the board would hold itself accountable to regulation. Many
examples are available, he offered.
10:49:31 AM
ROBERT CAYWOOD, Member, Anchorage Advisory Committee, stated
support for HB 103, and stressed that the public process is not
working. He reported that six of the local advisory committee
members have resigned over how the process is being handled.
The advisory committees and public need to have their power
restored, he finished.
CHAIR STUTES closed public testimony after ascertaining no one
further wished to testify.
10:50:53 AM
REPRESENTATIVE ORTIZ commented that the well managed fisheries
of Alaska are renowned throughout the nation. Certainly, a
process that involves local input and citizen review, is
fundamental to the democratic system. He expressed opposition
to HB 103, opining that it represents overreach and may inhibit
the board from being able to function appropriately.
REPRESENTATIVE WILSON explained that, although the bill proposes
to limit BOGs, during meetings, it does not prohibit the board
from generating proposals and submitting them to the full
process. The board has put sideboards on when it is able to
introduce a proposal, during a meeting, but the use of the word
"may" rather than "shall," in the language adopted perpetuates
the problem. She underscored that the way in which the process
is being handled now is not working.
10:55:03 AM
REPRESENTATIVE KREISS-TOMKINS said he looks forward to receipt
of a committee substitute for this bill.
10:55:14 AM
REPRESENTATIVE WILSON concurred with the comments of
Representative Ortiz for the good resource management work that
occurs in Alaska. She suggested that the legislature might take
on a very different tenor if the only bills to be introduced
were restricted to those generated by the public.
CHAIR STUTES held over HB 103.