Legislature(1999 - 2000)
03/20/2000 01:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 53 - CONST AM: WILD FOOD RESOURCES CHAIRMAN KOTT announced that the next order of business before the committee would be HOUSE BILL NO. 53, "An Act relating to allowable absences from the state for purposes of eligibility for permanent fund dividends; and providing for an effective date." [Before the committee was CSHJR 53(RES).] Number 1395 EDDIE GRASSER, Staff to Representative Masek, Alaska State Legislature, noted that there was a proposed committee substitute (CS), Version I [1-LS1337\I, Utermohle, 3/18/00], which he would address that day. He informed the committee that he has been working with members of the commercial fishing industry in order to ensure that Representative Masek's intent that consumptive users be accorded this protection would apply across the board. She does not want to cause conflicts among consumptive users. Therefore, in working with the commercial fishing industry, changes were made primarily in subsection (b). MR. GRASSER conveyed the belief that if HJR 53 were placed on the ballot and passed, it would do the following. First, it would provide people in areas such as McGrath another legal tool to try to get the state to implement a management scheme. Therefore, the word "enhanced" [was inserted on page 4, line 7]. Furthermore, the sponsor would like to include the language specified in Version I in subsection 2(b). In discussions, several attorneys had pointed out that this language would not necessarily prevent the Board of Fisheries or the Board of Game from closing areas to consumptive uses for some reason; however, it would raise the bar somewhat so that [closing areas to consumptive uses] could not primarily be done for a nonconsumptive purpose. For example, the Board of Game had closed bear hunting on Paint River, north of McNeil River, although no biological evidence was presented to close that bear hunt; it was done primarily because people viewing bears in McNeil River State Game Sanctuary were concerned that individual bears would accidentally be killed in the harvest and thus no longer be available for viewing at McNeil River. MR. GRASSER pointed out another consideration. Recently the Governor had written a letter to the Board of Game requesting that a wolf pack be protected by closing an area adjacent to Denali National Park. Both the National Park Service (NPS) and the Alaska Department of Fish & Game (ADF&G) initially had stated that there was no biological need to do so. Furthermore, there was probably no reason to do so to protect the viewing interests within the park's borders. MR. GRASSER noted that closures for conservation purposes could still occur. For example, McNeil River could be closed for the conservation purpose of protecting the bear population in an area where the bears congregate. Therefore, the bear population would not be unnecessarily diminished through hunting efforts, and there still would be a supply of bears that could be hunted outside of the refuge. Number 1624 MR. GRASSER explained that Representative Masek believes HJR 53 is necessary because over the last 25 years, animal rights groups have continually pressured the state and the federal government to close hunting and trapping in more areas in Alaska. During the Alaska National Interest Lands Conservation Act (ANILCA) debates, there were many comments that there would not be any further closures, and there were provisions in ANILCA to protect hunting in some of those preserves. However, the NPS has continually worked to close down areas to hunting by denying access or by a closure, Mr. Grasser contended. For example, the NPS has proposed the closure of subsistence hunting in the Kantishna area of Denali National Park. In that case, although subsistence was accorded the preference among hunters within ANILCA, it is not considered the priority use among nonconsumptive uses. Therefore, the NPS had decided that tourism was the higher and better use in that area, and had moved to close hunting. MR. GRASSER pointed out that the same situation exists with commercial and subsistence fishing in Glacier Bay National Park and Preserve and a few other areas of the state. Therefore, without some extra protection for consumptive users, it appears that this trend will continue, especially when considering that most people in the state do not hunt. Mr. Grasser noted that he grew up in Alaska and hunted in the state even before statehood. He reviewed his hunting history and the areas that he has been locked out of, through closures. MR. GRASSER told members that 40 million acres in Alaska are entirely closed to hunting and trapping. Another two-thirds of Alaska is off-limits to any active, traditional or intensive management for predator-prey relations and habitat manipulations because the land belongs to the federal government, which has ruled out such management. However, the regulations say that some consideration must be given to nonconsumptive uses; therefore, some areas must be closed to hunting in order to provide a priority for nonconsumptive uses. Mr. Grasser said, "I would suggest that the 40 million acres that we have already closed, and the additional two-thirds of the state that are basically closed to any kind of active management, do show that the state has given a priority to viewing and other nonconsumptive uses." MR. GRASSER turned to the game regulations. He informed the committee that one of the highest priorities for viewing is bear viewing, and two of the premier habitat areas for brown bear are located on Unit 8, Kodiak Island, and Unit 9, the Alaska Peninsula. He said he is intimately familiar with both areas because he has guided in both areas. The regulations for Unit 9 specify almost no open season in most of the unit. There are a few openings for subsistence in Unit 9, the Western Alaska brown bear management area, which is by registration only, and where hunting can only occur from September 1 through May 31. In the Chignik brown bear area, one can subsistence hunt from November 1 to December 31. In the remainder of Unit 9, there are a couple of registration hunts in the Naknek River drainage due to the conflict between human populations and bears. In the remainder of Unit 9, one can hunt every other year for two weeks. Therefore, Mr. Grasser suggested, most of Unit 9 has already been given a priority for nonconsumptive uses by action of the Board of Game. The same is true for Unit 8. Number 1959 MR. GRASSER noted that he had performed a quick search on the Web in order to discover what sort of opposition there is to hunting and trapping from established animal rights groups or environmental groups. There are literally hundreds of groups organized in the United States and around the world that are actively pursuing a closure to hunting, trapping and fishing. He said that the Friends of Animals in Connecticut say the following about hunting in the McGrath area: "Meanwhile, local communities have announced that they are tired of waiting for the state to act, and are therefore implementing their own control program in the McGrath area. Our [the Friends of Animals] position is that the Alaska Department of Fish & Game has an obligation and legal authority to stop these hunts." MR. GRASSER turned attention to the Humane Society of the United States, which he indicated has said, "Wildlife professionals remain firmly imbedded in the historic paradigm of conservation while the public increasingly is converted to the expanding paradigm of environmentalism." He remarked that he had pointed out the last statement because sometimes environmentalism has been construed to be conservation. However, he has determined, in working in Juneau the last 18 years, that environmentalism means preservation, not conservation. Mr. Grasser continued to provide the committee with examples that he had encountered on the Internet. He concluded that such groups are not going away. MR. GRASSER noted that Representative Masek's office had recently received a copy of Ron Arnold's book, Undue Influence. He said this book discusses prescriptive foundations and the attack on the resource class throughout the U.S. He himself has been studying the environmental movement for the last few years and believes some of this [information in Undue Influence] is good. He has found that ex-members of the environmental community, such as Walsh Cochran (ph), author of No Turning Back, have contended that the environmental movement has become a religion and is bent on imposing that religion on the rest of America. MR. GRASSER told members he would read from a couple of things that illustrate that. He read: "Environmentalism is a moral crusade. Moral crusades generate true believers, not accommodating neighbors. You can never be green enough." He continued to read other comments from environmental groups. In conclusion, Mr. Grasser said his experience in Juneau and throughout Alaska - as well as the continuing efforts of some groups to close down more acres to consumptive users - is the impetus for HJR 53. Furthermore, he believes the record reflects that "we" have done quite a bit to protect nonconsumptive uses. Therefore, he believes that it is time to do something to protect the remaining consumptive uses, which is what HJR 53 will accomplish. Number 2350 REPRESENTATIVE GREEN made a motion that the committee adopt the proposed CS, version 1-LS1337\I, Utermohle, 3/18/00, as the working document. There being no objection, it was so ordered and Version I was before the committee. REPRESENTATIVE GREEN expressed concern with the word "enhanced" on page 1, line 7, which is also included in the title. He explained that his concern regards having an unmanageable situation. He mentioned the beetle-kill situation and asked if the state would need to "enhance" the forest or grasslands because this applies to more than merely fish and wildlife. He suggested perhaps "enhanced" should not be used. He believes that adoption of subsection (b) accomplishes what is desired. TAPE 00-34, SIDE A MR. GRASSER noted that the legislature itself would have the authority to further elaborate on what these words mean in statute [after passage of a constitutional amendment]. He pointed out that only the word "enhanced" would be added to Section 4 [of Article VIII of the state's constitution]. All these adjectives are based on the sustained yield principle. According to George Utermohle, Attorney, Legislative Legal and Research Division, and Ted Popely, House Majority, as long as a record is established which says that "enhanced" means those opportunities based on sustained yield to do something that is within the state's power to do, the state would not be bound to do something about a beetle-kill forest. Number 0074 REPRESENTATIVE GREEN remarked that he is concerned that the supreme court sometimes meddles with what was the intention of the legislature; someone could make a case [under this language] and find a sympathetic supreme court that did not understand what the sponsor meant. MR. GRASSER agreed that could happen, saying perhaps that [language] would have to be taken back out. However, the intent is to provide people, specifically in the rural areas, some opportunity to go through the legal system to obtain help. REPRESENTATIVE GREEN reiterated his belief that subsection (b) does that. REPRESENTATIVE JAMES referred to Representative Green's mention of forests and grasslands; she said that doesn't bother her in this. She explained that she thinks the rule is in there already with "developed" and "maintained." She added: And I think we should have somebody tell us that we should plant more trees and actually create more grasslands, in both cases, whether we utilize them for any economic benefit or not, but for the future of our state. So, I don't have any real problem with "enhanced," except I don't know what it means. MR. GRASSER answered that there has been discussion about the word "enhanced". Essentially, the legislature would have to define this word in statute if HJR 53 passed. Number 0229 REPRESENTATIVE CROFT commented that one could "maintain" something on the sustained yield principle; however, he is unsure how one would "enhance" it on the sustained yield principle. Either this [HJR 53] contemplates growing to infinity, which is the meaning of the word "enhanced," or, if that isn't meant, the word shouldn't be put in. It is difficult for the courts to be mind-readers. REPRESENTATIVE CROFT turned to Section 2 and read from subsection (b), which stated: Consistent with the sustained yield principle, the harvest of fish and wildlife may not be diminished solely to provide for nonconsumptive use of fish or wildlife. He related his understanding that whenever a consumptive use is allowed [under the proposed legislation], it is similar to a ratchet that precludes going back to the former status. If there too many bears in McNeil River State Game Refuge, for example, and it were decided that there would be a limited hunt in order to cull 50 bears, wouldn't HJR 53 prevent the state from stopping a 50-bear hunt the next year as well? MR. GRASSER agreed that it couldn't be done solely to provide for a viewing purpose, but said it could be done for a conservation purpose or to do an ADF&G study. REPRESENTATIVE CROFT responded: Well, the purpose there is the viewing of the McNeil bears. So, I want, the next year, to stop it to allow that nonconsumptive use. You're right that when you get down to "almost no bears left," you could do it for conservation purposes, but I couldn't do it to re- establish the nonconsumptive use. Number 0380 MR. GRASSER said that actually it would require an Act of the legislature to open up McNeil River to bear hunting because that area is a sanctuary. Therefore, the Board of Game cannot open McNeil River [State Game Sanctuary]. REPRESENTATIVE CROFT pointed out that this [HJR 53] is a constitutional amendment. "Even with that, the legislature couldn't do it," he added. REPRESENTATIVE KERTTULA agreed, saying it would preempt it. MR. GRASSER remarked, "That's not the understanding of our legal people, and it's not our understanding." Having sat on the Board of Game, he said, there are numerous tools available to the legislature and the board to stop hunting besides the purpose of viewing the bears. He pointed out that in the McNeil River case, a conservation purpose could be claimed in order to arrive at the point being addressed; the bears congregate at this feeding place, and it isn't really an ethical place to hunt. Second, that pool of bears is maintained for the areas outside of that refuge or sanctuary for legal hunting, which is done not just at McNeil River but at other places such as Chugach State Park for sheep hunting. REPRESENTATIVE CROFT asked whether a whale would be considered a wildlife resource. MR. GRASSER answered that whales are not managed by the state. REPRESENTATIVE CROFT again asked whether a whale is a wildlife resource; there was no response. He asked whether a wolf is considered a wildlife resource. MR. GRASSER replied yes to the last question. Number 0486 REPRESENTATIVE KERTTULA remarked that she would not have a problem with this if Mr. Grasser personally was the one making the rules because she, having grown up with Mr. Grasser, trusts his ethics. However, she doesn't see that subsection (b) doesn't preempt any other rules. It clearly says "may not be diminished solely to provide for nonconsumptive use." Therefore, if there is no consumptive use, [the harvest] cannot be diminished. She asked, "Is that different from what your counsel is saying?" MR. GRASSER explained that his counsel had said that by constructing it [the language] in this fashion, it leaves the door open for all kinds of conservation purposes. However, if the only reason for closing it [a harvest] was for viewing, then there would be a problem. REPRESENTATIVE KERTTULA noted that it would be viewing or anything that is different from eating, which is nonconsumptive. She requested confirmation. MR. GRASSER reiterated that according to discussions with Mr. Popely and Mr. Utermohle, conservation purposes or the purposes of doing a management study on the population by the ADF&G would constitute a reason for closing that population to hunting or trapping. REPRESENTATIVE KERTTULA asked whether Mr. Utermohle and Mr. Popely were saying, then, that it is for consumptive use because it would be bringing back up the consumptive use. MR. GRASSER answered that he believes they were probably looking at some of those conservation purposes as being necessary for studies. Therefore, it would not necessarily be a consumptive or a nonconsumptive use, but would be a scientific use. Number 0609 REPRESENTATIVE KERTTULA said she thinks that is a real question, however. She believes that if there is something nonconsumptive, that couldn't be done under this language. She indicated she wished to talk with Mr. Utermohle and Mr. Popely about that. She then asked what this could do to commercial fishing. Would commercial fishing be considered a consumptive use? Or is it one step removed because the person fishing isn't consuming the fish. She asked whether there already is an opinion on that. MR. GRASSER explained that the reason that the sponsor and her staff had pushed for the current language [in Version I] versus the language that had passed from the House Resources Committee is because there is a legitimate question regarding human consumption. The question is whether the language would preempt commercial fishing in favor of personal use, subsistence and sport fishing. Mr. Grasser said he and Mr. Popely had met with the United Fishermen of Alaska (UFA) Board of Directors and had talked to [Legislative Legal Services]; he said their contention is that the phrase "the harvest of" would include any resource group that harvests, whether for commercial or noncommercial uses. Number 0692 REPRESENTATIVE ROKEBERG stated that he has concerns similar to those of Representatives Croft and Kerttula. He noted that because the animals are so readily accessible, hunting of the Kenai Lake sheep herd on the south face of the mountain and the goats at Turnagain Arm has been restricted; for the sheep herd in particular, that has been the case since the 1950s or before. The animals have been accessible for viewing by the public, which is why the herd has always been protected. Therefore, if that herd were to move out of its current geographic location, HJR 53 would preclude the ADF&G and the Board of Game from shutting down that area to protect the herd that was wandering. He asked if he was correct. MR. GRASSER answered that Representative Rokeberg is partially correct. However, he himself had legally hunted sheep on the Turnagain Arm drainage about 25 years ago. REPRESENTATIVE ROKEBERG clarified that he now was referring to the goats of Turnagain Arm that come down to the roadway. Those goats would presumably have to be protected because that area and population have been "ruined by human contamination." These animals cannot be hunted because they think humans are friendly. Number 0817 MR. GRASSER agreed, adding that people haven't been able to hunt those sheep for some time, nor able to hunt the sheep in Cooper Landing or Sheep Mountain Preserve by Caribou Creek on the Glenn Highway. However, those three populations are migratory and do wander into areas where there is legal hunting. He noted that sheep are fairly migratory within their home ranges; those sheep wander in and out of the protected areas. Again, that would be part of the conservation purpose, he said. In the Turnagain Arm area, furthermore, there is a definite safety issue involved that could result in closure of hunting on that herd. Mr. Grasser noted that part of the Sheep Mountain Preserve is set aside to protect the core area of the sheep range in order to allow for propagation and the ability of those sheep to migrate into the rest of the range. REPRESENTATIVE ROKEBERG questioned, however, whether that closed area could be expanded to protect that particular herd, under the amendment proposed in HJR 53. MR. GRASSER said that one could do so if the number of people increased in an area, for example, and it became a public safety issue; in that case, the Board of Game would probably close sheep hunting in that area even under the terms of this constitutional amendment. Number 0937 REPRESENTATIVE CROFT asked if anywhere in statute it says that human consumption or subsistence is the highest use. MR. GRASSER answered that subsistence is accorded the preference above other consumptive uses, but there is no place in statute that he is aware of that says consumptive use is the highest and best use. In further response to Representative Croft, Mr. Grasser specified that the [subsistence preference] can be found in AS 16.05.258. REPRESENTATIVE CROFT asked whether this type of provision could be done in statute. MR. GRASSER answered that this could be done in statute because the current language in Section 4, Article VIII, [of the constitution] refers to the preference among beneficial uses. He added, "Statutorially, you could do the same thing that you did for the subsistence preference that's in statute and claim that hunting, trapping and fishing were going to be accorded a priority over nonconsumptive uses." REPRESENTATIVE CROFT surmised, "Because these are uses, consumptive versus 'non,' we can distinguish them already under our constitutional provision." MR. GRASSER agreed. He pointed out that the sponsor statement expresses willingness to work in order to craft language that met the goal. Regarding Representative Croft's question about whether this can be done statutorially, he is correct, Mr. Grasser said. However, the historical record that he himself is aware of indicates that "the movement to rid ourselves of the ability to use resources - especially hunting, trapping and fishing - hasn't seemed to slow down any." There are calls for more closures, and hunters in Alaska have become a minority, making up less than one- fifth of the population. The question becomes whether hunting is legitimate. Will it continue to be squeezed out, or will the state afford some protection to a tradition that goes back generations in Alaska? Mr. Grasser said that is basically the goal, which he does not believe could be captured with a statutory change because at some point he believes that "those forces that are looking to get rid of hunting will probably prevail and remove the statute." CHAIRMAN KOTT announced that HJR 53 would be held over in order to have Mr. Utermohle present information at a future hearing regarding the definition of "enhanced," as well as to clarify the provision on Section 2, line 12.
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