Legislature(1993 - 1994)

03/25/1994 08:15 AM House RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  Number 067                                                                   
                                                                               
  HB 443 - Fish & Wildlife Confidential Records                                
                                                                               
  WAYNE REGELIN, DEPUTY DIRECTOR, DIVISION OF WILDLIFE                         
  CONSERVATION, ALASKA DEPARTMENT OF FISH AND GAME (ADF&G),                    
  stated HB 443 addresses the confidentiality of radio                         
  frequencies and a few other types of information ADF&G feels                 
  should remain confidential.  ADF&G has routinely radio                       
  collared many different animals for research and management                  
  purposes since the mid-1970s and this information has always                 
  remained confidential.  He said at the request of ADF&G, the                 
  confidentiality requirement was put into regulation by the                   
  Board of Game in 1986 because tourist companies were wanting                 
  to use ADF&G's radio frequencies for flight seeing.  In                      
  1990, the legislature revised the confidentiality statutes                   
  throughout most departments.  At that time, ADF&G asked the                  
  legislature to add an amendment to ensure the continued                      
  confidentiality of radio frequency information and the                       
  legislature did so.                                                          
                                                                               
  MR. REGELIN stated when that change was made, wording was                    
  added saying the department shall keep information                           
  confidential when the knowledge may be detrimental to the                    
  fish and wildlife population.  ADF&G did not realize the                     
  wording was a problem until the department was sued in the                   
  summer of 1993 for refusing to release radio frequency                       
  information to an individual wishing to track radio collared                 
  wolves.  ADF&G was required by a court order to release the                  
  information because the department could not prove that the                  
  information would be detrimental to the population.  It                      
  might have been detrimental to the individual animals, but                   
  not to the population.  He stressed it would be nearly                       
  impossible to ever prove a population detriment because only                 
  a few animals are collared at one time.  He said even death                  
  to those few animals would not hurt the population.                          
                                                                               
  MR. REGELIN explained ADF&G is requesting, through HB 443,                   
  that those words be removed so ADF&G will not have to                        
  provide that proof.  He said HB 443 will also add another                    
  section allowing the department to keep specific locations                   
  of animal capture sites for wildlife research or management                  
  confidential.  The department currently has a request, under                 
  the Public Records Act, for all locations of traps and                       
  snares used in ground based wolf control operation south of                  
  Fairbanks.  The request asks for the exact locations of                      
  where the department sets each trap.  He stressed the                        
  department believes it is in the state's best interest and                   
  essential for good wildlife management to keep the radio                     
  frequencies and trap locations confidential.                                 
                                                                               
  Number 112                                                                   
                                                                               
  MR. REGELIN said ADF&G feels if the department is required                   
  to release this information, it may compromise some of the                   
  department's studies because animals might be removed or                     
  displaced, altering their behavior.  ADF&G feels the release                 
  of information might lead to the disturbance of sensitive                    
  locations such as den sites.  ADF&G believes the information                 
  could be used to facilitate harassment of the department's                   
  research and management programs by individuals and                          
  organizations who oppose them.  ADF&G feels the information                  
  could also lead to increased vulnerability of the animals                    
  and associated animals for unethical people to get the radio                 
  frequencies and use them for hunting.                                        
                                                                               
  MR. REGELIN stated another change which ADF&G recommends is                  
  that words be added allowing the release of the information,                 
  if the requestor is under contract with the state to conduct                 
  research.  This provision will allow the department to                       
  cooperate on projects with researchers, private consultants,                 
  etc., where the research is mutually beneficial to everyone                  
  involved.  He pointed out that in all other states he is                     
  aware of, this kind of radio frequency information and                       
  specific locations are kept confidential.  He added that                     
  federal agencies like the Fish and Wildlife Service and the                  
  National Park Service also keep this information                             
  confidential.                                                                
                                                                               
  MR. REGELIN said the individual who received ADF&G's radio                   
  frequencies under court order, also requested frequencies                    
  from the National Park Service but was denied because                        
  federal laws are more strict.  He stated ADF&G is not saying                 
  that no other agency, organization, or individual should be                  
  allowed to conduct wildlife research on radio collared                       
  animals.  He noted federal agencies, such as the National                    
  Park Service, routinely put on collars and often work                        
  cooperatively with ADF&G and in doing this, they do so under                 
  a permit from ADF&G.  He explained consulting firms are also                 
  allowed to put their own radio collars on under a permit                     
  received from ADF&G.  HB 443 will leave that decision up to                  
  the discretion of the commissioner in entering for                           
  cooperative agreement, if the agreement is in the best                       
  interest of the state.  He stated in most cases it is in the                 
  best interest of the state to work with other groups and                     
  organizations to share costs, funding, and work together.                    
  ADF&G does that routinely with a wide number of people and                   
  universities throughout the country.  He said ADF&G does so                  
  with almost anyone who has scientific credibility.                           
                                                                               
  Number 159                                                                   
                                                                               
  MR. REGELIN stated HB 443 will not change the department's                   
  obligation to provide information to the public about                        
  ongoing activities.  ADF&G routinely provides summary                        
  information on almost all ongoing department activities and                  
  also provides great detail of the department's information                   
  when requested.  For example, on the department's wolf                       
  control program, ADF&G has provided the Alaska Wildlife                      
  Alliance and other people, information on all of the costs,                  
  biological information, etc.  He stressed what ADF&G has not                 
  given out is the exact locations of where every trap is set.                 
  The department has given out maps indicating the traps are                   
  within a certain zone, and informing them the exact                          
  locations will be given once the trapping season has ended.                  
                                                                               
  MR. REGELIN noted there had been discussions with several                    
  people in the House and Senate asking ADF&G to offer an                      
  amendment.  He said the amendment will provide additional                    
  flexibility for the commissioner.  On page 2, line 2, of HB
  443 the amendment will insert "if the requestor has been                     
  authorized by the department to perform specific activities                  
  and the requestor agrees to use this information only for                    
  purposes as provided under the contractor agreement."  He                    
  explained the reason for the amendment is ADF&G does not                     
  want to be, by law, not able to cooperate with someone, such                 
  as people making a wildlife film, where it would be to the                   
  state's advantage to produce a good wildlife film.  This                     
  amendment will allow that to be done.                                        
                                                                               
  Number 201                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN said he is confused about HB 443                  
  because there is a court order contained in each member's                    
  packet and the court decision stated the department was not                  
  required to give any information to the plaintiff                            
  organizations.  He pointed out that one individual did get                   
  the information, but that individual was ordered not to                      
  release the information to any of the individuals and                        
  organizations who were the plaintiffs.  He felt it is clear                  
  that the state succeeded, the current law has achieved the                   
  balance the state wanted and the court went even further and                 
  he explained the authority the state has.  He thought the                    
  court order has given the department the power already and                   
  he did not understand what needs to be fixed.                                
                                                                               
  MR. REGELIN responded the standard of proof used by the                      
  judge was the department could not demonstrate a detriment                   
  to the fish or wildlife population.  At ADF&G's request, the                 
  judge put in the confidential language.  He said ADF&G                       
  remains concerned that a precedent has been set and the                      
  department will not be able to prove, if a flight seer wants                 
  to fly 100 planes a day over wildlife wearing radio collars,                 
  that it is detrimental to the population.                                    
                                                                               
  MR. REGELIN added ADF&G currently has two requests from                      
  flight seers which the department has not acted on.  He                      
  stressed the issue is broader than just the one individual                   
  who sued the department.  ADF&G is concerned that a                          
  precedent has been set and if the department has to release                  
  the information, the next judge may not include the                          
  confidentiality clause.  HB 443 will solve the department's                  
  problem.  He stated if an individual is contracted with a                    
  group of people who the department feels are beneficial to                   
  cooperate with and work with, the department will try and                    
  work with that individual.                                                   
                                                                               
  Number 257                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN clarified Mr. Regelin had said                    
  the court imposed a burden on the department to show                         
  detriment to the fish and wildlife population.  He asked                     
  where that is indicated in the court order.                                  
                                                                               
  MR. REGELIN said he listened to the judge and when making                    
  his decision, that was the standard.  He thought the                         
  Department of Law would need to explain the court order.                     
                                                                               
  REPRESENTATIVE FINKELSTEIN felt there is no problem in                       
  interpreting the court order.  He thought ADF&G probably has                 
  read the court order many times because it is the basis for                  
  interpreting the current law.                                                
                                                                               
  REPRESENTATIVE HUDSON felt HB 443 is attempting to avoid                     
  future court determinations and to clearly stipulate what                    
  the department's needs are in law so as to preclude someone                  
  from going to a judge to make a determination.  He said                      
  because there is a judge's decision outlining the parameters                 
  in the bill, it makes it easier to have it in the statutes.                  
                                                                               
  Number 395                                                                   
                                                                               
  DR. GORDON HABER, DENALI PARK, testified via teleconference                  
  and stated HB 443 was written by the state directly and is                   
  solely in response to an action he took.  He clarified the                   
  state has given internal memos and other materials directed                  
  at him to committee members.  He stated HB 443, even with                    
  the proposed amendment, will make it impossible for any                      
  valid scientific research to be conducted on radio collared                  
  animals except by another agency or under ADF&G contract.                    
  He noted that the person under contract will have to be                      
  someone the department feels comfortable with, meaning any                   
  project conducted will be under strict ADF&G control.                        
                                                                               
  DR. HABER pointed out that in June, a Superior Court judge                   
  listened to all ADF&G arguments and all of his, and did so                   
  on a level playing field.  After hearing testimony, the                      
  judge awarded the ADF&G radio frequencies to him to allow                    
  him to conduct research, which the judge considered would                    
  contribute significantly to the issue of wolf control.  He                   
  said in the order, the judge pointed out that the state had                  
  not challenged his credentials as a scientist and concluded                  
  that the state's arguments to the effect that this decision                  
  would set a precedent and open the flood gate for harm to                    
  the wildlife populations were unfounded.  The judge                          
  determined the ADF&G commissioner already has adequate                       
  regulatory permitting authority to preclude that                             
  possibility.  He pointed out there has been no indication                    
  yet of any onrush of people seeking the radio collar                         
  frequencies.                                                                 
                                                                               
  DR. HABER said the judge made it very clear in his order                     
  that he or anybody else is forbidden to use the frequencies                  
  for anything but scientific research.  He felt there is no                   
  additional protection for radio collared wildlife under HB
  443 not already existing in present statute and the                          
  commissioner's existing regulatory permitting authority.                     
  Mr. Haber stressed the only effect HB 443 will have is to                    
  suppress the kind of scientific research he is conducting as                 
  an independent scientist, not under any ADF&G's direct                       
  control; the kind of independent research he felt will be                    
  welcomed by the legislature because the research ensures the                 
  broadest possible information base and serves as a check                     
  against biased, self-serving interpretations which might be                  
  presented by either side in a complex controversial issue of                 
  public policy.                                                               
                                                                               
  Number 353                                                                   
                                                                               
  DR. HABER commented that ADF&G has already argued that                       
  opponents to its wolf control programs do not have the data                  
  to support their arguments.  He pointed out that existing                    
  statute allows opponents, through qualified scientists, to                   
  gather information independently and go to the Board of Game                 
  with the data to make their best arguments.  Closing the                     
  opportunity for independent information to be collected will                 
  leave opponents of controversial programs, like wolf                         
  control, with only one alternative and that is a boycott.                    
  Mr. Haber said based on the research he has been doing in                    
  and near the current and recently proposed wolf control                      
  areas, with the aid of the frequencies, he has already been                  
  able to generate several major technical reports.                            
                                                                               
  DR. HABER noted that ADF&G has received several of his                       
  reports and will be receiving more.  The reports are                         
  available to anyone who requests them.  He said the reports                  
  represent over $100,000 of research he has conducted since                   
  April.  He felt the information received from his research                   
  is a bargain for the state as none of the money used to                      
  conduct the research is state money.  He stated the results                  
  he has collected thus far represent a different                              
  interpretation than what ADF&G has provided to Alaskans.                     
  For example, his research indicates the moose population in                  
  game management 20-A south of Fairbanks, is almost certainly                 
  past its most productive size presently, where maximum                       
  sustainable harvest for hunters could be derived.                            
  (Indiscernible) wolves as the state is trying to do now                      
  (indiscernible) will increase further through a range of                     
  densities where recruitment and sustainable yields will                      
  continue to decrease which is somewhat self-defeating since                  
  the objective in 20-A is to increase hunting opportunities.                  
  He gave other examples.                                                      
                                                                               
  Number 399                                                                   
                                                                               
  DR. HABER stated the material which ADF&G has given to                       
  committee members paints him as a wildlife greenie.  He                      
  reminded committee members that the judge in his court order                 
  emphasized ADF&G did not challenge his scientific                            
  credentials.  He explained he has a Ph.D and Masters Degree                  
  based on management oriented wolf/bear research which he has                 
  been doing for 29 years.  He has several technical                           
  publications.  He is a permanent resident of game management                 
  area 20-A where wolf control is being carried out.  Local                    
  resident there strongly support his efforts.                                 
                                                                               
  DR. HABER said the People magazine article clearly defines                   
  what he thinks about the current wolf control program,                       
  although it does not say much about his technical arguments.                 
  He pointed out that contrary to the picture which ADF&G is                   
  trying to paint, he does not oppose wolf control across the                  
  board which can be seen if his technical publications are                    
  read.  He stated back in the 1970s when the western Arctic                   
  caribou herd crashed in Northwestern Alaska, he was one of                   
  the strongest supporters and defenders of wolf control in                    
  that case.                                                                   
                                                                               
  DR. HABER stated some of his support has come from                           
  environmental organizations, but ADF&G has not mentioned he                  
  has also received grants from the opposite side.  He has                     
  received grants in the past from the National Rifle                          
  Association and the Boone and Crockett Club.  He noted he is                 
  currently a member of the National Rifle Association and a                   
  member of the Alaska Outdoor Council.                                        
                                                                               
  Number 467                                                                   
                                                                               
  REPRESENTATIVE HUDSON stated it appears Mr. Haber's                          
  testimony is going to be lengthy and there will be                           
  additional questions.  He suggested to Chairman Williams                     
  that HB 443 be moved to the bottom of the calendar and allow                 
  the committee to hear HJR 61 which will be fairly                            
  expeditious.                                                                 
                                                                               
  REPRESENTATIVE JAMES asked if there will be enough time for                  
  Mr. Haber to complete his testimony.                                         
                                                                               
  MR. HABER said he only wants to comment on the memos which                   
  ADF&G included in committee member's folders.  He felt the                   
  memos are relevant because they have implied he has created                  
  major disturbances in the wolf population.                                   
                                                                               
  MR. HABER continued in regard to the memo from Mr. Regelin                   
  to Mr. Kelleyhouse and the memo from Mr. Boertje to Mr.                      
  Regelin, it is clear to him that the department is                           
  attempting to imply that having been forced to release the                   
  radio collar frequencies, there has been disruption to the                   
  wolf populations where the radio collared wolves are                         
  located.  He stressed that is untrue.  He said he has                        
  conducted two major surveys in that area since the survey                    
  Mr. Boertje is referring to in his January 24 memo and has                   
  not seen what is described in that memo.  Mr. Haber,                         
  referring to a photograph which he took of one of the radio                  
  collared packs, which was published in the Fairbanks Daily                   
  News and is in committee member's folders, asked committee                   
  members to look at the photograph and determine if there is                  
  even the slightest hint those wolves in any manner were                      
  responding to the aircraft.  He gave other examples of                       
  photographs taken which do not indicate any disturbance.                     
                                                                               
  Number 537                                                                   
                                                                               
  MR. HABER stated since he has received the frequencies from                  
  the state, he has been monitoring 21 radio collared wolf                     
  packs.  Upon thinking about how many of the wolves have                      
  reacted to his airplane in any kind of significant way, he                   
  can only recall about six cases where wolves responded.  He                  
  added the response is usually very brief.  In four of those                  
  six cases, the response was usually after the department had                 
  flown over.  He stressed if there is any evidence of                         
  disturbance, the overwhelming evidence indicates that the                    
  department is disturbing the wolves.  He said there really                   
  is no evidence of widespread disturbances as ADF&G is trying                 
  to imply.  Mr. Haber commented in the memo from Mr. Boertje                  
  to Mr. Regelin, in regard to wolves being afraid of                          
  helicopters, the last survey he flew was two months prior to                 
  the mid-January survey.                                                      
                                                                               
  MR. HABER concluded that by only seeing the People magazine                  
  article, and being denied the opportunity to read the other                  
  technical publications he has written, committee members are                 
  being presented a slanted, inaccurate picture as to Mr.                      
  Haber's effect on the wolves.  He urged committee members to                 
  not pass HB 443.                                                             
                                                                               
  CHAIRMAN WILLIAMS announced HB 443 will be held.  He said it                 
  is his understanding that the department is trying to work                   
  with Mr. Haber to get his questions and concerns taken care                  
  of.  He told committee members they will take up HB 443                      
  again if there is time remaining after the next bill is                      
  heard.                                                                       
  TAPE 94-42, SIDE A                                                           
  Number 000                                                                   
                                                                               
  HB 443 - Fish & Wildlife Confidential Records                                
                                                                               
  CHAIRMAN WILLIAMS stated he would like to amend HB 443 and                   
  get suggestions from committee members.                                      
                                                                               
  REPRESENTATIVE JAMES made a MOTION to AMEND HB 443 on page                   
  1, line 14: delete the word "or" and on page 2, line 2,                      
  insert ", or if the requestor has been authorized by the                     
  department to perform specific activities, and the requestor                 
  agrees to use the information only for purposes as provided                  
  under contract or agreement."                                                
                                                                               
  Number 020                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN said he cannot determine the                      
  relationship of the amendment to the concerns being                          
  expressed by Dr. Haber.                                                      
                                                                               
  DR. HABER stated there is a problem because the amendment                    
  still says that research will not happen if the department                   
  decides not to give him a contract.  He pointed out that he                  
  made a request for the radio collar frequencies before he                    
  went to court, laid out a research plan, and wrote a letter                  
  to the ADF&G commissioner several months before and he was                   
  flatly denied.  He felt the amendment will still leave it                    
  under the control of the department, precluding independent                  
  research.                                                                    
                                                                               
  Number 040                                                                   
                                                                               
  MR. REGELIN stated ADF&G has some of the best experts in the                 
  world on collecting biological data on wolf populations and                  
  the department stands by what has been done and what has                     
  been published.  He said ADF&G did not challenge Mr. Haber's                 
  credibility in court because the department did not feel it                  
  was pertinent.  He pointed out that for decades, standard                    
  scientists have used the number and quality of peer review                   
  publications in scientific journals to ascertain a                           
  scientists credibility.  He commented an examination of the                  
  publications record of Mr. Haber will show he has not                        
  published in any peer review journals.                                       
                                                                               
  MR. REGELIN stated Mr. Haber has an impressive list of                       
  titles but close examination shows that his publications are                 
  published by the Xerox machines of extreme animal rights                     
  groups.  He agreed the amendment will not solve the concerns                 
  and problem which Mr. Haber has because the department will                  
  not issue him a permit if they are not required to.  He said                 
  ADF&G wants to work with people they have confidence in and                  
  ensure the people can distinguish between scientific fact                    
  and personal opinion.                                                        
                                                                               
  Number 068                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN asked if there is any evidence                    
  indicating that any of the information Dr. Haber collected                   
  has been released to anyone the court order said it should                   
  not go to.                                                                   
                                                                               
  MR. REGELIN responded none of the information has been                       
  released.  He stated HB 443 is much broader than what is                     
  required for one person.  HB 443 will keep the department                    
  from having to provide the exact locations of traps and                      
  snare sets to people during the trapping operation and                       
  providing information in future court orders, making it                      
  clear that the information is confidential and not to be                     
  used for flight seeing, unethical guides, etc.                               
                                                                               
  REPRESENTATIVE FINKELSTEIN stressed nothing in the court                     
  order precludes ADF&G from keeping the information out of                    
  people's hands.  He felt there is no issue.                                  
                                                                               
  MR. REGELIN stated ADF&G's concern is that a precedent has                   
  been set and a certain standard has to be met.  The court                    
  order says ADF&G can keep the information confidential but                   
  the next judge can change that order.  ADF&G wants to have a                 
  policy established like every other state has and like all                   
  the federal agencies have to keep this type of information                   
  confidential.  He stressed ADF&G feels the information needs                 
  to remain confidential for the best interest of the state.                   
  When ADF&G feels it is in the best interest of the state to                  
  release the information, they will do so.                                    
                                                                               
  REPRESENTATIVE BUNDE agreed.  He said the more people who                    
  have the information, the potential for the information no                   
  longer being confidential goes up.                                           
                                                                               
  Number 075                                                                   
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections to the                  
  motion.                                                                      
                                                                               
  REPRESENTATIVE FINKELSTEIN OBJECTED.                                         
                                                                               
  REPRESENTATIVE FINKELSTEIN made a MOTION to AMEND the                        
  AMENDMENT, on page 2, line 2, inserting after the word                       
  "activities", the words "or is conducting scientific                         
  research".  He felt the amendment only addresses areas where                 
  someone is working on the side of the department.  The                       
  amendment does not change what is already proposed in HB
  443.  He said whether or not a person is conducting valid                    
  scientific research is the issue.  He pointed out the                        
  requestor will still have to agree in writing to whatever                    
  terms the department requires about the information.                         
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections to the                  
  motion.                                                                      
                                                                               
  REPRESENTATIVE HUDSON OBJECTED.  He clarified the proposed                   
  amendment to the amendment will read, ", or if the requestor                 
  has been authorized by the department to perform specific                    
  activities or to conduct scientific research, and the                        
  requestor..."                                                                
                                                                               
  REPRESENTATIVE FINKELSTEIN stated he wanted the amendment to                 
  the amendment to read "specific activities or is conducting                  
  scientific research, and the requestor..."  He pointed out                   
  HB 443 already covers situations where requestors are doing                  
  research in agreement with the department.  The issue is                     
  someone who does not agree with the department but is still                  
  an entity in the state conducting valid scientific research.                 
                                                                               
  REPRESENTATIVE HUDSON clarified that the maker of the                        
  amendment to the amendment is not precluding the conducting                  
  of scientific research from the need to be authorized by the                 
  department under contract or agreement.                                      
                                                                               
  REPRESENTATIVE FINKELSTEIN said he is because that is the                    
  issue being discussed.  The department decides they do not                   
  agree with a requestors policies so they do not want to                      
  authorize that particular research, but the department can                   
  make the decision whether or not it is valid scientific                      
  research.                                                                    
                                                                               
  REPRESENTATIVE HUDSON pointed out that specific activities                   
  can include scientific research or any number of other                       
  things.                                                                      
                                                                               
  REPRESENTATIVE FINKELSTEIN clarified that Representative                     
  Hudson's suggestion is to change the words to "or to                         
  conducting scientific research" and then it would be                         
  authorized by the department.                                                
                                                                               
  REPRESENTATIVE HUDSON clarified the amendment to the                         
  amendment will read, "perform specific activities, or to the                 
  conduct of scientific research and the requestor agrees to                   
  use..."  He felt that amplifies scientific research as a                     
  part of the provision but it still indicates the research                    
  will have to be authorized by the department.                                
                                                                               
  REPRESENTATIVE FINKELSTEIN said the language is becoming                     
  very confusing.  He stressed the issue he is trying to                       
  address is somebody who the department does not want to                      
  authorize because that person has a different viewpoint.  He                 
  felt the state should not be precluding people just because                  
  they do not have the same viewpoint as the department.                       
                                                                               
  CHAIRMAN WILLIAMS announced he will hold HB 443 until a                      
  later date.                                                                  
                                                                               
  REPRESENTATIVE FINKELSTEIN WITHDREW his MOTION.                              
                                                                               
  ANNOUNCEMENTS                                                                
                                                                               
  CHAIRMAN WILLIAMS announced the committee will meet on                       
  Monday, March 28 at 8:15 a.m. to hear HB 286 and HB 436.                     
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  There being no further business to come before the House                     
  Resources Committee, Chairman Williams adjourned the meeting                 
  at 10:12 a.m.                                                                

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