Legislature(1999 - 2000)
03/17/1999 01:05 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 74 - SAME DAY AIRBORNE HUNTING CO-CHAIR OGAN announced the committee would hear Senate Bill No. 74, "An Act relating to hunting on the same day airborne." Number 0183 VICTOR GUNN, Legislative Administrative Assistant to Senator Pete Kelly, Alaska State Legislature, explained SB 74 on behalf of the sponsor, who was out of town. In 1996, there was an initiative to ban "same-day land and shoot," which the Alaskan people supported; however, because of the advertising, he believes that some people weren't sure whether they were voting on the aerial hunting of wolves, which has been illegal since the 1970s. Mr. Gunn said the initiative was sold as "a vehicle to put right violations of principles of fair chase and sportsmanship." MR. GUNN emphasized that SB 74 is not about hunting but game management. He read from page 1, line 1: "A person may not shoot or assist in shooting a free-ranging wolf, wolverine, fox, or lynx the same day that a person has been airborne." He said the 1996 initiative had tied the hands of managers. Although proponents of the current law claim it allows use of aerial means in certain circumstances, fish and game managers say that in practical terms it is a total ban on aerial means for hunting and all management, no matter how significant the game emergency. MR. GUNN noted that many alternatives exist; however, terms such as "adequate data," "irreversible decline of prey population" or "biological emergency" are ambiguous enough to be challenged in court, which would tie up any emergency game management. This bill removes that language, allowing game management to be carried out by the Alaska Department of Fish and Game (ADF&G) at the direction of the Board of Game. MR. GUNN concluded, "The people of Alaska don't want aerial wolf hunting; they've spoken about that, and SB 74 does not subvert their will. It's not about just prey populations. But people in this state do want responsible management of the game or resources, and this bill would give the Department of Fish and Game the tools they need to carry out responsible management of their game resources." He said SB 74 will help reduce costs, should they choose to use this as a means of game management, and removing ambiguous language would allow greater efficiency in addressing emergency situations. He told members the written sponsor statement is quite clear, providing background and the reasons for introduction of the bill. Number 0571 CO-CHAIR OGAN asked whether, when it was legal to "land and shoot," the requirement was in statute or regulation that specified the distance a hunter must be from the aircraft. WAYNE REGELIN, Director, Division of Wildlife Conservation, Alaska Department of Fish and Game (ADF&G), answered that it was in regulation. Number 0619 CO-CHAIR OGAN commented that people he knows who hunt wolves had said when that regulation was passed, their take had dropped about 80 percent. Co-Chair Ogan expounded on the difficulty of landing a small airplane, getting out, putting on snowshoes, and then pursuing wolves that are on the run. He asked whether Mr. Gunn believes the bill sponsor would object to language that says a hunter can get out and shoot as soon as the engine and the forward motion of the airplane stop. MR. GUNN pointed out that current law already allows the Board of Game to authorize a wolf control program involving the shooting of wolves from the air. However, he believes that the language that allows them to come to a finding that they can do so is ambiguous enough that it would probably be challenged in court, to tie it up for political reasons. Number 0828 CO-CHAIR OGAN said his concern is that the board could still pass a regulation that would put the 100-yard limitation on it. MR. GUNN restated that the ADF&G can hunt from the air now, without landing; the question is how they get to that point. The bill is not about hunting or hunters, who are prohibited from hunting from the air under any circumstance; nor is that the intent of the bill. He noted that SB 74 has language allowing an agent to do this for the state, which has raised concerns. He specified that as the bill is envisioned, an agent is considered to be someone that the ADF&G would hire to act in the department's capacity, rather than just hiring, carte blanche, hunters to go out and hunt wolves for some management program. The ADF&G would have control over these people, and it would be basically a contractual-type arrangement. Number 0980 DAVID KELLEYHOUSE, Alaska Outdoor Council (AOC), came forward, specifying that the AOC supports SB 74. He provided a written statement and expressed his belief that the Defenders of Wildlife, a national animal rights group, was instrumental in passing Ballot Measure 3 in 1996. He said the voters were misled into believing that the ADF&G would be able to continue to use same-day airborne taking of wolves, if that were necessary to manage game. However, while the wording of AS 16.05.783 appears to allow the Board of Game to authorize a wolf control program using same-day airborne taking, terms such as "biological emergency," "adequate data" and "no feasible solution" ensure that no program authorized under this section could withstand a legal challenge by animal rights activists. Mr. Kelleyhouse told members he was working for the ADF&G at the time of the initiative, and the commissioner strongly discouraged their going public about those concerns. MR. KELLEYHOUSE said a basic premise of sound wildlife management is preventing decimation of a wildlife population that could be important to tens of thousands of Alaskans. As written now, AS 16.05.783 requires not only that managers allow a biological emergency to occur before being allowed to take action, but biologists must then demonstrate "with adequate data" that a wolf population "is causing the irreversible decline of a prey population" and that "there is no feasible solution, other than airborne control, that can eliminate the emergency." Mr. Kelleyhouse said no professional biologist would risk credibility attesting to these unreasonable criteria. MR. KELLEYHOUSE told members: There has never, in the state of Alaska's history, to my knowledge, ever been an irreversible decline of a game population. The addition of a single animal to a severely diminished population, by definition, means that that decline is not irreversible; but you still don't have enough animals to use. Moose and caribou declines are almost always the result of a host of mortality factors, like weather, bear predation and wolf predation - not wolf predation alone. Finally, it can always be argued in court that feasible solutions exist other than airborne control to reduce mortality on a herd, such as - aha - stopping all hunting is a start, habitat acquisition and improvement, or heavier bear harvests, or even poisons. Therefore, the current wording of [AS] 16.05.783 provides limitless opportunities for a successful court challenge of any necessary state management program. Senate Bill 74 does not allow same-day airborne hunting by the general public; it simply clarifies that same-day airborne taking can only be conducted by the state, if a state management action is authorized by the Board of Game or the commissioner. In short, it clarifies what the voters thought they were voting on in 1996. As we have been discussing right now SB 74, the Alaska Board of Game is in Anchorage struggling with a chronic decline of moose and caribou numbers in Game Management Unit 13, one of the most important hunting areas in Alaska. A severe decline in moose numbers ... has already occurred in the upper Kuskokwim River drainage. AS 16.05.783, drafted by anti-hunting and anti-management activists, is providing the Administration a most convenient excuse to take no effective management action to ensure sustained yield management for the benefit of Alaskans. The council strongly urges that the committee pass this out. Number 1293 REPRESENTATIVE JOULE asked whether declining populations in Unit 13 and the upper Kuskokwim areas are attributed to wolves or something else. MR. KELLEYHOUSE said Mr. Regelin could probably address that better, but the decline in Unit 13, the Nelchina-Copper Basin, is from a combination of bear and wolf predation, probably along with some depleted range conditions. The upper Kuskokwim problem is from a combination of wolf and black bear predation. He restated that seldom are wolves the sole blame for a decline. Number 1376 CO-CHAIR OGAN noted that SB 74 doesn't say anything about shooting wolves from the air. MR. KELLEYHOUSE agreed that it just addresses same-day airborne taking, whether the shooting is from the air or the ground. He said he has been involved in both kinds of wolf control programs. He added that former-Governor Hickel "had a thing about shooting from the air, and consequently our staff couldn't do that." Number 1443 CO-CHAIR OGAN asked Mr. Kelleyhouse to state his past experience with this issue. MR. KELLEYHOUSE responded that he began work with the ADF&G in 1976 as a game biologist and was involved in the Unit 20-A, Tanana Flats, wolf control program. He transferred to Tok in 1978, where he was the area biologist until 1991; during that time, he and his staff conducted wolf control operations in the Forty Mile country, increasing that caribou herd from about 6,500 to 20,000 animals and roughly doubling the moose population. Then, as director under the Hickel Administration, the board authorized action to halt the decline of the Delta caribou herd, which was successful; hunting has been restored on that herd and the Forty Mile caribou herd, as well as on the Unit 20-A and Forty Mile moose populations. Mr. Kelleyhouse said he has spent an entire career with this issue. REPRESENTATIVE MASEK asked Mr. Kelleyhouse to comment on page 2, lines 7 and 8. [Beginning on line 6, the bill read: "(b) This section does not apply to (1) a person who was airborne the same day if that person was airborne only on a regularly scheduled commercial flight; or".] MR. KELLEYHOUSE said that was part of the original wording put in front of the voters, and it has not been changed. For example, someone who flies to a village on a scheduled flight and then runs a trap line that afternoon could shoot a wolf. Number 1631 RICHARD T. WALLEN, artist and long-time resident of Alaska, came forward. He advised members that shortly after statehood, he worked for five years as a wildlife biologist for the ADF&G; he also served on the Board of Game from 1989 to 1992. More recently, he was a member of the steering committee for the initiative that banned same-day airborne hunting. Mr. Wallen read a letter put together by that steering committee when hearings on SB 74 were held in the Senate Resources Committee. [He provided copies of the letter, dated March 3, 1999, as well as the Dittman Research Corporation poll results.] He read as follows: We urge you to vote against SB 74. As members of the coalition responsible for the citizen initiative that restricted same-day airborne wolf hunting, we believe that a vote to pass SB 74 in its present form is counter to the clear will of the Alaska public. As evidence of this, we have attached two polls by the Anchorage-based Dittman Research Corporation, one from 1995 and one from 1998 ... and the district-by-district breakdown of the vote on Proposition 3 in 1996. That tally also identifies the vote by town and village. We believe that the public still overwhelmingly opposes the use of aircraft to control wolves except in exceptional cases where wolves are causing a serous decline in a prey population. It may be desirable to redefine this concept to eliminate any ambiguity about what that point is, but eliminating all reference to a biological emergency goes too far. In addition, we believe that only employees of the Department of Fish and Game should be engaged in airborne wolf control activities, if such activities are necessary. The use of the public as agents raises serious questions of motive, control and accountability and has been repeatedly criticized in the past as enjoying little support. On the matter of the department not been able to control diseased or louse-infected wolves, we believe that the commissioner has existing authority to remove individual wolves that are a threat to the general population, under his general authority to assure the safety and protection of wildlife; and the steering committee indicated its intent on this in a letter to the Attorney General during the campaign. We respectfully urge you to oppose SB 74 and not vote counter to the demonstrated public opinion on the matter. MR. WALLEN noted that the letter was signed by steering committee members Doug Pope, former chairman of the Board of Game; Joel Bennett, former member of the Board of Game; himself; and James Brooks, former commissioner of the ADF&G. Number 1842 CO-CHAIR OGAN turned the gavel over to Co-Chair Jerry Sanders in order to attend another hearing. REPRESENTATIVE MASEK reported that she had received many calls and letters from her district in support of SB 74; those constituents had indicated they don't see why the hunting should be just allowed to the ADF&G, and that all residents should take part. She sees this bill as allowing the public to be able to fly their planes and then shoot wolves, if they need to. Number 1982 MR. WALLEN replied, "That point in the initiative really didn't come out of thin air. In 1992, the Department of Fish and Game authorized a citizens' wolf management planning team, and it was people from all over the state; I think there were about a dozen people, and they represented all different viewpoints. There were aerial wolf hunters, and there were some animal protection people, and everybody in between. ... There was no complete agreement reached on any point, but one point was that the public would have more confidence in a wolf control program if it were conducted by [Department of] Fish and Game personnel, because that eliminated the question of other motive coming into play in the control program." Number 2048 JOEL BENNETT came forward, noting that he had co-sponsored Proposition 3 along with Doug Pope. He told members he continues to be dismayed by the representation by Mr. Kelleyhouse that this initiative was an anti-hunting measure created by anti-hunting activists. Mr. Bennett stated, "I think anybody who took the time to look into the basis of Proposition 3 knew that it was primarily sponsored by active hunters, including myself, Jay Hammond, Jim Brooks, Jack Lenford (ph), Dick Nelson (ph), Doug Pope. All hold current hunting licenses and have had a long-term history of hunting within the state, in many geographic regions." He noted that many of them had served on the Board of Game through the years of controversy and wrangling over the question of at what point the use of airplanes would be appropriate, in both hunting and wolf control. MR. BENNETT stated, "I have to say that I'm so seriously convinced that the public in this state wants to have some parameters on the use of airplanes. I think if any of you followed the recent game board meeting in Anchorage, which considered the idea of using airplanes, same day, to hunt bears in Unit 13, you know the degree of concern the public had with that; and the board subsequently acted to table that regulation. So, in our view, the genesis of Proposition 3 was a good-faith effort to try to implement what the public felt was appropriate." MR. BENNETT disagreed with earlier assertions about what the campaign for the initiative had depicted in the media. He stated, "I was involved in that; I will stand by the media campaign. I don't think the Alaska public was naive enough to think that what we were seeking to do ... was eliminate the practice of shooting from an airplane. Most people in this state know that that's been illegal for a long time, many decades, and that's not what the current statute was designed to remedy." Mr. Bennett pointed out that in one advertisement, the photography of the wolf was from the ground, not from an airplane, and it wasn't even a simulated land-and-shoot wolf hunt. The other advertisement was a simulated land-and-shoot wolf hunt, and he said that everyone he spoke to understood that. CO-CHAIR OGAN remarked that his staff member, who is intelligent and college-educated, had been misled by television commercials into believing that Proposition 3 was to ban hunting from airplanes; however, now that she has the facts, she supports SB 74. Number 2339 MR. BENNETT reminded members that the ultimate act is in the voting booth, where the public actually reads the text of the proposition. There is also supposed to be an impartial description of what it does in the election pamphlet. Mr. Bennett stated, "If people believe something based on a television ad only, I think that's ill-advised." He noted that in all but six of the forty election districts statewide, this measure passed by a substantial number; that includes Co-Chair Ogan's district, as well as most of the committee members' districts. MR. BENNETT concluded by urging the committee not to take this superficially, saying, "This is a serious statute. If there are problems with ambiguity, this committee can take a hard look at that and see if there can be some improvements. But ... to just pass SB 74 in its current form out quickly, without further real scrutiny, I think is a mistake." Number 2405 CO-CHAIR OGAN expressed concern that some questions on the Dittman surveys had been ambiguous. He cited examples from the 1995 survey and contended that the ambiguity was deliberate. Number 2500 MR. REGELIN came forward, noting that SB 74 modifies the same-day airborne statute that was adopted by ballot initiative November 5, 1996. This bill does not affect airborne hunting, but it does three things. First, by removing the language it removes the requirement that before an aerial wolf program can be authorized for the ADF&G to conduct, the commissioner must make a written finding demonstrating that a biological emergency exists and that there is no other feasible solution to eliminate this biological emergency. Second, it deletes the definition of "biological emergency" from the statute. And third, it authorizes use of non-department personnel, or agents, in implementing a department predator control program. MR. REGELIN said the ADF&G realizes that "biological emergency," as currently defined in this statute, is a very difficult standard to meet; it requires a determination that an irreversible decline in the moose or caribou population will occur if no action is taken. However, it is impossible to predict that a population will suffer an irreversible decline. Predation doesn't drive populations to extinction, but it can reduce them to very low levels and can hold them there. The ADF&G is willing to work with the legislature to develop a different definition or different wording there. However, they believe it is a good idea to have a standard, established in statute, that must be met before wolf control can be initiated. The department cannot support SB 74 without such a standard. MR. REGELIN said furthermore, the ADF&G doesn't believe it is wise to have non-agency personnel conduct predator control programs, because these programs are extremely controversial. The ADF&G does realize the need for non-department personnel to fly helicopters and fixed-wing aircraft to use in the predator program; the department also believes it currently has the authority to contract for these services. If, however, members think that language needs to be clarified, Mr. Regelin offered to work with them on that. MR. REGELIN told members the ADF&G knows from experience that any wolf control activity will be extremely controversial. A large segment of the Alaska public doesn't want lethal wolf control by the department to become a routine part of its wildlife management program. However, the public may except wolf control in some circumstances, where it can be shown to be necessary. The ADF&G has learned that decisions on predator management need to be made through a public process that people think is fair; there are many different ways to have that public process, including the Board of Game process, use of advisory committees, or the way they did it in the Forty Mile area, with the special planning group that represented all the different users. MR. REGELIN advised members that the department will initiate wolf control once three criteria have been met. First, they have to have sound scientific evidence that predation is the fundamental cause of the decline or the continuing low level. Then, in cooperation with the Board of Game, they need to look at the economic benefits associated with the control program, and the benefits that they expect. And third, there needs to be an indication of not necessarily support but public acceptance of such a control program. MR. REGELIN concluded by emphasizing that SB 74 doesn't change the prohibition on hunting the same day one is airborne. It only affects how it relates to department-sponsored wolf control programs. Number 2765 REPRESENTATIVE MASEK asked how much the sterilization program is costing the state. MR. REGELIN replied that the program is still underway, in its second year. The budget is about $270,000 per year for the entire program, which includes the biologists' time, sterilization, moving of wolves, and then the monitoring of populations of wolves, caribou and moose. Without doing some figuring, however, he couldn't say what portion is for monitoring and what portion is for sterilization and movement of the subdominant wolves in that area. He added, "That's typical. Any time we get into a department-sponsored wolf control effort, it's expensive." Number 2818 REPRESENTATIVE BARNES mentioned how people's beloved pets are killed at animal shelters if the owners aren't located. The public accepts that, and she suggested that if they knew the truth about the predation of the wolves, they would also accept that control. MR. REGELIN said that is a good point; whenever the department has been able to sit down with groups and work through it in detail, such as the planning for the Forty Mile area or the wolf planning group that was statewide, people have agreed, if it was deemed necessary. However, they say it must be done under tight controls, and not often. It is okay if it needs to be done periodically, in emergency situations or special situations, but they don't want it to be a routine measure, which is something the department hears a lot. Mr. Regelin added that there are hunters in most Alaskan families. TAPE 99-15, SIDE B Number 2968 [Numbers run backwards because of machine] MR. REGELIN said the department has learned that if they don't do that process, they don't have a chance. Even then, it is tough to do, because a certain segment will fight this, and they have a very emotional appeal. CO-CHAIR OGAN and REPRESENTATIVE BARNES engaged Mr. Regelin in a discussion of the legislature's authority to manage Alaska's fish and wildlife resources. Number 2780 CO-CHAIR OGAN pointed out that the legislature delegates authority to the Board of Game to carry out the legislature's policy, then suggested that SB 74 was spurred by the Governor's failure to carry out that policy. He asked what control the board would have over how the department conducts these hunts. MR. REGELIN answered that under the intensive management law, the Board of Game has more than two pages of regulations that tell the department how to conduct wolf control measures; for example, there must be a defined geographic area and certain data. The department doesn't have to land and shoot; they can shoot out of an aircraft. General regulations under SB 77 (passed four years ago, then amended by another bill two years ago) allow or require the ADF&G to do these things. The board has a lot of flexibility in certain ways, because the language says it needs to be prudent, cost-effective and something that will work. If the board determines that wolf control should be done in any area, then they require the department to put together an implementation plan that describes such things as a geographic area, the biology, and how many wolves will be taken. That goes before the Board of Game again, which adopts it as a regulation. The board is very, very much involved in authorizing wolf control. CO-CHAIR OGAN asked whether the board would have the ability to set the methods and means of how the ADF&G would conduct these hunts. MR. REGELIN said they do, and it varies. For example, in the implementation plan in the Forty Mile area, the method is sterilization and movement of wolves, whereas in Unit 20-D it is shooting from the air, which is authorized. However, it would be illegal for the board to pass a regulation changing it so that hunters could shoot wolves the same day they were airborne, for example, because it is prohibited by a statute. CO-CHAIR OGAN asked whether, in theory, the board could set a limitation that required landing and traveling a hundred yards from the airplane before shooting. MR. REGELIN answered, "The board could probably do that, but ... when we get into a department control program, it's not a hunting program, and ... it's nothing to do with fair chase. We try to do it in the most cost-efficient and effective manner possible. ... I can't imagine the board doing that, because it wouldn't be effective or efficient." CO-CHAIR OGAN asked whether the department would conduct this program, as set forth in SB 74, even if the Governor objected. MR. REGELIN said it would be up to the Governor and the commissioner as to whether the ADF&G implements the program. Number 2444 REPRESENTATIVE JOULE said it sounds as if Mr. Regelin has some suggestions to make SB 74 more workable. He asked what those are. MR. REGELIN said he didn't have any to present that day, but he would be happy to work on that. Number 2361 REPRESENTATIVE MASEK asked whether, since the date that the initiative went into law, the commissioner had made any findings on adequate data demonstrating that a biological emergency exists. MR. REGELIN replied, "No, I don't believe so. Since the initiative passed and became law, the Board of Game has not authorized any new wolf control initiatives or efforts. There were three that were already on the books when this passed, and they still are there." REPRESENTATIVE MASEK commented that her brother hunts on the Yukon and has confirmed that wolves there are aggressive, killing moose but not necessarily even eating them all. She added that sterilizing the wolves is probably worse than anything else, because it disrupts the nature of the wolves. Number 2154 REPRESENTATIVE BARNES read at length from the state constitution, in particular, Article III, Sections 16 and 18, and Article VIII. She emphasized that, throughout, it allows legislators to make these determinations by law. MR. REGELIN pointed out that when the Board of Game, under authority delegated by the legislature, has these three wolf control plans on the books, the plans say the commissioner "may" authorize or extend funds to do wolf control, or "may" implement wolf control. They do not say he "must." REPRESENTATIVE BARNES suggested the legislature needs to pass a law, then, saying the commissioner "shall" do it when there is a biological reason to do so. MR. REGELIN replied, "You could pass such a law. We try, as a department, [to] work in a close, cooperative working relationship with the board; it can't work if we don't." He noted that the ADF&G provides biological data for the board, for example, and does its very best to implement the actions that the board takes. There is a very good working relationship. Number 1886 REPRESENTATIVE MASEK asked whether Mr. Regelin believes there would ever be a predator management program undertaken using the language in the initiative that passed. MR. REGELIN answered that he thinks it could be authorized and allowed, but because the language in the statute says there must be an irreversible decline, it leaves it open for a court challenge because of the difficulty in meeting that standard. He added, "Even the sponsors of the initiative have said that that's not what was meant, and they are not adverse to changing that." Number 1791 MR. GUNN closed by noting that the Dittman Research Corporation polls were commissioned in 1995 and 1998 by the Defenders of Wildlife. He said in the Senate, much was made about opposition in Alaska to hunting from the air. He read the third question from the 1995 poll, which asked, "Do you agree or disagree with this statement: If a biological emergency exists, such as a moose or caribou population in danger of local extinction, the Department of Fish and Game should be allowed to use airplanes to conduct limited aerial wolf control programs?" Mr. Gunn noted that 69 percent of those polled had agreed with that statement. MR. GUNN then read the fourth question from that poll, which asked, "If Alaska had a statewide ballot initiative that said, 'No person may shoot a wolf, coyote, wolverine, fox or lynx that same day that person is airborne. However, if authorities conclude that a biological emergency does exist, a same-day aerial wolf control program conducted by Fish and Game personnel only may be authorized' - Do you think you would vote for or against that initiative?" Mr. Gunn noted that 63 percent of those polled had voted "For." MR. GUNN pointed out that in 1998, the poll questions asked whether people supported or opposed hunting of wolves the same day that hunters had been flying. He concluded, "This bill is not about hunting. It's about the two questions that were asked in 1995, and that's what we were here to change, in Senate Bill 74." Number 1630 CO-CHAIR SANDERS asked whether anyone else wished to testify, then closed public testimony on SB 74. He announced that the co-chairmen did not intend to pass SB 74 out that day but planned to work on it. [SB 74 was held over.]
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