Legislature(2015 - 2016)BARNES 124
04/01/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB125 | |
| HB274 | |
| HB266 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 274 | TELECONFERENCED | |
| *+ | HB 266 | TELECONFERENCED | |
| += | HB 213 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 125 | TELECONFERENCED | |
HB 266-BOARD OF GAME REGULATION PROPOSALS
2:56:25 PM
CO-CHAIR TALERICO announced that the final order of business
would be HOUSE BILL NO. 266, "An Act relating to the authority
of the Board of Game to adopt, amend, or repeal certain
regulations."
2:56:38 PM
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, as prime
sponsor of HB 266, noted she attended the Board of Game meeting
a few weeks ago wherein "Proposal 19" came before the board.
The board chose to reject Proposal 19; therefore, she is
presenting HB 266.
2:57:22 PM
The committee took an at-ease from 2:57 p.m. to 2:59 p.m.
2:59:10 PM
CO-CHAIR NAGEAK moved to adopt the proposed committee substitute
(CS) for HB 266, Version 29-LS1205\N, Bullard, 3/31/16, as the
working document. There being no objection, Version N was
before the committee.
2:59:34 PM
REPRESENTATIVE WILSON advised that the changes are based on
discussions during the Board of Game meeting, and the Alaska
Department of Fish & Game's concerns. She paraphrased from the
sponsor statement, which read as follows [original punctuation
provided]:
The clear intent of our constitutional framers and
early legislators was to include the public in the
process of managing and allocating our game resources.
Alaska is unique, for example, among all states for
operating a system of game advisory committees (ACs).
Unfortunately, this intent toward public participation
has in recent years been frustrated by a commingling
of the functions of the board of game with the
Department of Fish and Game, the result of which has
been public exclusion.
The legislature is empowered in Art. 8, Sec. 2 of the
Alaska Constitution with managing and allocating all
resources, including game. The legislature has in turn
statutorily delegated that management authority by
creating the Department of Fish and Game in the
executive branch to manage fish and game resources.
The legislature also delegated the allocation
authority by creating the Board of Game, but they did
not put this board in the executive branch, but in the
legislative branch.
Current statute and regulation require proposals for
the allocation of game resources to be submitted by a
published deadline before the board meeting. Members
of the public, advisory committees (AC), the
department, and the board can submit such proposals.
Typically, these proposals are published well ahead of
the meeting for the interested public to scrutinize,
and if they deem necessary, offer input.
The problem that has developed is that the board,
using department staff for support, are developing
proposals outside of the public purview. While
individual members of the public and ACs must submit
their proposals in advance of board meetings, the
board and department staff can work on proposal
language with no notice to the public. This language
is often adopted as board regulation without the
public having opportunity to engage in its
development.
HB 266 will solve this problem and put the public back
in control of the process of managing and allocating
our game resources just as our framers intended.
3:01:42 PM
REPRESENTATIVE WILSON outlined the changes to the original bill
made by Version N, and paraphrased the following sectional
analysis, which read as follows [original punctuation provided]:
Sec. 1- AS 16.05.255 (a): In the original version of
the bill, (a)(8) of the current statute was amended by
removing "prohibiting the live capture, possession,
transport, or release of native or exotic game or
their eggs"; this language was added back into the CS,
resulting in no change to the current AS 16.05.255
(a)(8).
Adding back in the language was made in response to a
concern by the department.
Sec. 2- AS 16.05.255 (c): In the CS, the frequency of
the requirement that the Board of Game shall solicit
proposals to amend, adopt, or repeal regulations was
changed to "at least once a year" from "at least twice
a year" in response to a concern by the department
that doing so twice per year would result in increased
costs.
Sec. 3- AS 16.05.255: In the CS, several changes were
made to the requirements for public notice for a board
member's proposal as follows:
• The requirement for public notice of a board
member's proposal was lowered from 65 days to 60.
• A new subsection (B) was added to allow an
exemption to the 60-day requirement if the board finds
in writing that a board member's proposal to adopt,
amend, or repeal a regulation is necessitated by a
court ruling or order. This exemption was added in
response to concerns raised by the Department of Law,
as well as the Chairman and other members of the Board
of Game regarding the board's flexibility to respond
to court decisions.
Additionally, language changes were made in the CS to
section (l) for clarification purposes: no substantive
changes were made with the new language. Several of
the language changes were made at the request of the
department.
3:02:50 PM
REPRESENTATIVE WILSON related that Section 3 is an issue in that
the advisory committee contains people from "your community."
People are elected during a meeting of their peers, they serve
on these boards, listen endlessly during all of the different
board meetings, weigh in on the packets of which are usually
over 100 different proposals from all over the state, and offer
their opinion as to how it would or would not affect their
areas. In order to testify during the Board of Game meetings
the person must appear in person because they cannot appear
telephonically.
REPRESENTATIVE WILSON referred to Section 3, page 3, line 4, of
Version N, and she advised the bill discusses proposals, and
stressed that it would be able to take care of anything coming
from the courts. She said she understands that 60 days is the
norm for other proposals, so the proposed language would change
that from 65 days to 60 days. She highlighted that the 60-day
notice requirement would not apply if the following exceptions
exist [as written on lines 9-25, which read as follows]:
(1) at least three members of the board
support the proposal and the board
(A) provides advisory committees and
interested person the opportunity to make
recommendations or comment on the proposal; and
(B) makes written findings that
(i) the proposal requires the
board's expedited consideration because of
conservation concerns or significant regulatory
problems;
(ii) the subject matter of the
proposal would not be before the board for one
calendar year but for the board member's proposal; and
(iii) the proposal is in the best
interests of the public; or
(2) the proposal is to
(A) adopt an emergency regulation or
order under AS 44.62.250; or
(B) adopt, amend, or repeal a
regulation that the board finds in writing is
necessitated by a court ruling or order.
3:05:11 PM
CO-CHAIR TALERICO turned to Section 3, page 3, and surmised that
there is a mechanism for the board if it does bring a proposal
within less time than the 60 day notice requirement, such that
three board members must sign off having provided opportunities
for the advisory committees and interested people to make
recommendations. Thereby, he said, allowing the board to review
a proposal in less than the 60 day notice requirement.
REPRESENTATIVE WILSON agreed.
REPRESENTATIVE JOSEPHSON asked Representative Wilson to explain
Proposal 19.
REPRESENTATIVE WILSON explained that Proposal 19 "pretty much"
mirrors this bill. She related that the proposal was brought
before the Fairbanks Advisory Council, it was taken to the Board
of Game, she testified in support of the proposal, and the Board
of Game decided against because it did not want to tie their own
hands and rejected the proposal.
3:06:39 PM
REPRESENTATIVE JOSEPHSON inquired whether part of the impetus
for HB 266 was a response to Proposal 207, regarding scoping
sheep from the air. He advised he has seen emails from the Mat-
Su Local Advisory Council and emails regarding the upcoming
confirmation hearings relative to the Board of Game's concern
about people doing same day [hunting] or locating sheep en route
to a hunting site.
REPRESENTATIVE WILSON responded, "That was what broke the
camel's back." She stated there were previous proposals, but
that was probably one of the most contentious proposal. Also,
she related, since that time a "sheep working group" was put
together behind closed doors until enough people found out about
it and they tried to make it a regular committee. She
reiterated that the concern is about taking Alaskan resources
and making sure there is a process that everyone must go
through, and not just the public.
3:07:52 PM
REPRESENTATIVE HERRON asked the reason the Board of Game offered
for refusing to adopt the proposal.
REPRESENTATIVE WILSON related one reason was because "we didn't
do the same to the Board of Fish," although there is a proposal
before the Board of Fisheries. Also, the Board of Game asked
that next time the boards meet jointly, so they included all
relevant proposals. The Board of Game did ask her, at the board
meeting, whether she would be replacing them if "we went forward
with this," and she advised she would give the Board of
Fisheries the same opportunity as was given the Board of Game,
she said. The other reason was that the Board of Game received
comments from the Department of Law and others, asking why it
would want to, basically, narrow the scope of things it could
and could not do. Honestly, she opined, the answer should have
been that the Board of Game goes through the same public process
as everyone else. She advised there is actually an [agreement],
not as tight as this is, between the two boards. Although, she
commented, even with the agreement between the boards that they
wouldn't have board generated proposals, Proposal 207 came after
that and they didn't abide by their own rules.
3:09:13 PM
REPRESENTATIVE HERRON noted that the board decided not to
consider the proposal, and asked whether the practice is to, at
least, give a cursory reason. He asked whether Representative
Wilson did not receive a reason other than the Board of Game
didn't like it.
3:09:38 PM
REPRESENTATIVE WILSON answered that after she testified she did
not receive a communication back from the board, although the
proposal was from the Fairbanks Advisory Council. She offered
that after she testified at the meeting, there was a discussion
about some type of amendment but no amendments were offered at
that time, and the proposal was rejected.
REPRESENTATIVE HERRON inquired as to whether there is, or is
not, a mechanism where any proposal brought to the Board of Game
can be set aside without explanation.
REPRESENTATIVE WILSON replied that the board did discuss it,
similar to legislative committee meeting discussions, and it
voted the proposal down and it did not provide findings.
3:10:35 PM
REPRESENTATIVE JOSEPHSON related he has attended Board of Game
meetings and testified many times, and offered appreciation for
the essence of Representative Wilson's testimony [today] in
terms of compliance with transparency and open meetings. He
then used the example of freedom of association such that four
likeminded people in Fairbanks meet at a coffee house to hammer
out ideas on the regulation of black bear baiting, he asked
whether the public should be privy to their latte.
REPRESENTATIVE WILSON responded that if the members of the
board, whatever amount it is so they don't get into ethics
violations, or individuals want to meet, which is what the
advisory councils do, and come up with a proposal that is
absolutely fine. The issue here, she pointed out, is when the
proposal does not come up, and it's not in the book that goes
out months prior so everyone has time to send comments in or to
testify. When something comes up in the board meeting with no
way of any type of public comment and it is passed, depending on
the cycle, it could be a year or so before anything can be done
opposing it because it cannot be done immediately. She
explained that this legislation is about making sure the board
conducts its system in the same manner as an advisory council,
or as a legislator submitting a proposal. She expressed that
the board needs to follow the process also.
3:12:25 PM
REPRESENTATIVE JOSEPHSON clarified that he didn't mean members
of the Board of Game, he meant citizens, and surmised that
Representative Wilson's intent was not to prohibit lay citizens
or say they cannot collude to fashion a proposal.
REPRESENTATIVE WILSON answered absolutely not, they have to
follow the process now and submit the proposal to the Board of
Game.
REPRESENTATIVE JOSEPHSON asked whether things are dropped on the
table in addition to the proposal packet by, for example, the
Alaska Department of Fish & Game or working groups. He asked
whether she was discussing issues not vetted and that the public
was not privy to 30 days in advance.
REPRESENTATIVE WILSON replied that from what she has seen and
heard, it is taking a proposal and changing it to such an extent
it is no longer recognizable as the original proposal. She
continued that the Board of Game doesn't actually put a new
proposal in. The Board of Game substantially changes a proposal
that people testified on, and rather than voting it up or down,
the board take a proposal that has been submitted in that area,
she explained.
3:13:50 PM
REPRESENTATIVE SEATON surmised that in one sense the discussion
has been about a proposal made in the booklet, and in the other
sense the Board of Game amends, adopts, or repeals a regulation
without 60 days' notice. He asked Representative Wilson that if
the board takes a proposal on the table that has had public
testimony, and amends that proposal to a significant degree,
that she intends this bill to read that the board cannot pass it
because it wouldn't have had 60 days on a board generated
amendment proposal.
3:15:09 PM
REPRESENTATIVE WILSON responded correct, the board would have to
take that proposal back to the advisory councils and have it go
through the same process as any other proposal would.
REPRESENTATIVE SEATON asked the clear boundary of the extent to
which a submitted published proposal can be amended by the Board
of Game before it falls into the parameter that it isn't quite
enough of what was in the proposal book on the same subject,
without going back through another 60 day process and hearing it
the next year.
REPRESENTATIVE WILSON deferred to the witnesses.
REPRESENTATIVE SEATON clarified that he is trying to understand
the boundary of the amount of modification the language proposes
in this bill; the legal bounds of amending before it is
considered a new proposal.
CO-CHAIR TALERICO advised there are people in the audience from
the Alaska Department of Fish & Game.
REPRESENTATIVE JOSEPHSON noted the bill sponsor provided an
Alaska trial court summary judgment decision under Kenneth
Manning and The Fish and Wildlife Conservation Fund v. State
Department of Fish & Game and Ahtna Tene Nene, Case No. 3KN-09-
178CI, pages 14-16, and he pointed to the list of authorities
outlining the amount of deviation that can be taken before there
is not sufficient notice.
3:18:13 PM
GLENN HAIGHT, Executive Director, Boards Support Section, Alaska
Department of Fish & Game (ADF&G), explained that while the
Boards Supports Section works closely to facilitate the board
process, it is the section's job as well to make sure the
advisory committees can complete their jobs. When an advisory
council has concerns about the process their concern matters to
the section of which it works on regularly.
3:18:18 PM
MR. HAIGHT thanked the sponsor for changing the fiscal note from
two calls to one call which effectively reduces the extra
expense, and advised a revised fiscal note will be submitted.
He explained there are four different ways for which boards
accept and develop proposals [in-cycle proposals, agenda change
requests, emergency petitions, and board generated proposals].
He referred to the "in-cycle proposals" and advised that both
the Board of Game and Board of Fisheries are on a three year
cycle, they take the same region and species on a three year
cycle. For example, he said, next year the Board of Fisheries
will take on Upper Cook Inlet, Lower Cook Inlet, Kodiak, and
statewide King and Tanner crab, and the public gets used to that
pattern. Prior to that time, the board opens a call for
proposals and people have a deadline to submit and, he offered,
the deadline for next year is in two weeks for the following
meetings cycle. He continued that the proposals come in, the
section reviews the proposals and has them published timely to
meet the legal requirements of the Administration Procedures Act
(APA) which factors into all of the proposal procedures.
Subsequently, he said, the proposals are scheduled for the
meeting cycle and then heard.
3:20:17 PM
MR. HAIGHT explained that a common manner to submit a proposal
to the board is through "agenda change requests." He described
the three year cycle as fairly clunky and it doesn't let urgent
issues come before the board quickly. Therefore, there is a
mechanism for people to bring requests and essentially ask the
board to take up an out-of-cycle subject during the next meeting
cycle because it is urgent. The boards have criteria to review
and should the board determine it does meet that criteria, they
will schedule it for a meeting, and that is done in time to meet
the 30 day legal notice requirement in the APA.
MR. HAIGHT advised there are also "emergency petitions" and
compared these to emergency regulations seen in the
Administration Procedures Act (APA), anyone can submit an
emergency petition at any time under strict criteria, such as
conservation concerns or potential loss of significant economic
value.
MR. HAIGHT related that the fourth manner is "board generated
proposals" which are essentially proposals adopted at a board
meeting. He explained it is not essential that it comes from a
board member, but that it deals with subjects not considered or
thought about beforehand. He noted, it may create more
opportunity, deal with an enforcement issue, or a conservation
concern, but it is an issue the board feels is urgent to take
up. Mr. Haight stated there a policy within the committee
packet that boards need to consider when they take up a board
generated proposal.
3:21:56 PM
MR. HAIGHT pointed to the fourth item the board must consider,
which read, "Will there be reasonable and adequate opportunity
for the public to comment," and the board must consider that
before taking up the issue. In terms of characterizing board
generated proposals, he said, some subjects are technical and
simple and not controversial, and some are important. A board
can recognize this and know it needs to allow for extended time
for review and comment, and this is a decision a board must
weigh when faced with these. He suggested another way to look
at this is that some board generated proposals are taken in-
cycle; the board will pick up a subject that is currently in-
cycle but has not been proposed. When a board does that,
legally a board can take action on it at that meeting, although
it then comes back to whether it is technical or substantial, he
said. In the event it is a big deal, a board will typically not
take action and will extend the time out depending on the
subject. In the event a board takes up a subject that is out-
of-cycle, meaning it hasn't noticed it, they do need to meet the
Administration Procedures Act (APA) requirements, go out for 30
days and schedule it at a later meeting. The board can't take
action on an out-of-cycle proposal that has not been legally
noticed, he said.
MR. HAIGHT addressed Representative Seaton's earlier question
and noted the discussion was regarding, when a board has a
proposal and amends it, sometimes it will provide substitute
language. He continued that sometimes proposals are conceptual,
sometimes they are in regulation but are not complete, or
sometimes the board hears something from the public and wants to
amend the proposal, and the board will create substitute
language. He agreed it is concerning if [the process] got to a
point where the board was not able to amend the proposal in
front of them and pass it, and the public would see a delay of
many proposals, which is an issue.
3:23:57 PM
MR. HAIGHT offered examples of some of these things in action,
as follows: In 2015, at the Southeast Fin Fish meeting, the
section's regulation specialist noted a bankrupt hatchery
operator was specifically named in regulation and; therefore, no
one else could come in and perform enhancement work in the area.
The issue was noted, discussed, and the board generated a
proposal to put a generic firm in [regulation] so any qualified
operator could work in the area. There was no controversy at
the meeting and it appeared important to do, so the board passed
it there, he said. That is an example of efficient use of the
board process in that it saw the problem, solved it there, and
did not wait three years. Mr. Haight then offered an example of
a proposal taken out-of-cycle such that, last year at the
Southeast Shell Fish meeting in Wrangell the board proposed
changes for method and means for Kuskokwim Upper River fish
wheel handling. He said, it was not in-cycle, so the board
scheduled it for the March statewide meeting where more people
from that area could come in and participate.
3:25:32 PM
KRISTY TIBBLES, Executive Director, Board of Game, Alaska
Department of Fish & Game (ADF&G), commented that Proposal 207
was one of four board generated proposals that came up during
the last meeting cycle, two others were the result of court
decisions. She explained that Proposal 207 was a compilation of
ideas concerning sheep hunting that Chairman Ted Spraker brought
forward at the board's January 8, 2016 work session. She noted
the board had expected to deal with numerous sheep proposals
that meeting cycle. The board's meetings for that year were one
day work session the day prior to its Southeast region meeting
in January. Approximately one month later the board had another
regulatory meeting for the Central Southwest region, and a month
later had its South Central region meeting which, she noted, was
fairly condensed and that within 60 days it had its three
meetings. In order to make a decision of the board it must be
made at their meeting. Chairman Spraker brought forward
Proposal 207 and asked whether the board would like to schedule
the proposal as a board generated proposal to solicit comments.
Issues were included that were not on the proposals before them,
but it was all concerning sheep hunting. The board did schedule
the proposal for consideration at the February meeting, and 30
day public notice was provided for that meeting in accordance
with the APA. Subsequently, she advised, the board received
public comments and seven advisory committees, and noted that
the board also scheduled the proposal for the March meeting to
continue public comment, where it took its final action. She
explained that during this meeting cycle the board had one board
generated proposal, an issue Bruce Weyrauch brought forward to
the board through the agenda change request policy concerning
the ability to take Eurasian Collared-Doves. The board
discussed that issue in a teleconference and felt it did not
meet the standard for the agenda change request policy, but that
it needed to be addressed this year. This year it had just a
single meeting, it was 60 days prior to the time of receiving
that agenda change request so it created a board generated
proposal to act on that topic.
3:28:28 PM
MS. TIBBLES related that the year prior, the board had a board
generated proposal wherein the Wildlife Troopers wanted the
board to address the potential problem of the use of drones to
spot big game. The board passed the agenda change request
process and believed it could do a board generated proposal,
schedule it 30 days to give public notice, and then take action
on the proposal.
3:29:10 PM
REPRESENTATIVE SEATON drew attention to Manning and State v.
First Nat'l Bank of Anchorage, 660 P.2d 406, 425 (Alaska 1982)
wherein the court held that the informative summary requirement
was satisfied where the notice consisted merely of broad topics
that would be considered. In the event the topic of sheep
hunting is noticed, and the courts found that that is adequate
notice to amend proposals, he asked whether that is what this
bill will change. For example, he queried, if the topics are
listed, such as king salmon fishing on the Kuskokwim River, the
board meets and wants to talk about methods and means of king
salmon fishing on the Kuskokwim River which is a broader topic.
He asked whether this legislation would prevent that from being
a board generated proposal because it is amending beyond the
exact topic as was advertised. He reiterated that he would like
to know the parameters of amendments that can be there, under
the language of the bill and not the intent.
3:31:01 PM
MR. HAIGHT answered that in reading the proposed committee
substitute [Version N], it appears there is one provision
wherein the proposal is not required to meet the notice
requirement if three members support it. He surmised it is
possible to take up some board generated proposals fairly
quickly, as long as they are not conservation issues. He
referred to the aforementioned Section 3, on page 3, lines 14-
19, of Version N, to the proposed subsection (l),(1)(B)(i) and
(ii), [which would amend AS 16.05.255] and which read as
follows:
(i) the proposal requires the
board's expedited consideration because of
conservation concerns or significant regulatory
problems; and
(ii) the subject matter of the
proposal would not be before the board for one
calendar year but for the board member's proposal; and
MR. HAIGHT related that the subject matter would not be before
the board so the board could not take in-cycle proposals with
this bill, and stressed he could be incorrect.
3:31:59 PM
REPRESENTATIVE SEATON noted the requirement that it is sent out
to the advisory committees.
MR. HAIGHT agreed, and referred to AS 16.05.255(l)(1)(A), which
read:
(A) provides advisory committees and
interested person the opportunity to make
recommendations or comment on the proposal; and
MR. HAIGHT pointed out that [AS 16.05.255(l)(1)(A)] suggests
there is a notice, but he was unsure how that would actually be
implemented, and was unsure what opportunity means. He opined
it probably has a lot to do with how difficult the issue being
addressed is in terms of providing opportunity and how to
implement that.
REPRESENTATIVE SEATON related that his intent is to ensure there
is good public notice, but also to ensure the board is not
handcuffed and cannot act on proposals other than the strict
proposal before it. He related that it appears it is illegal to
amend if it does not have the support of three board members,
but it becomes legal if there are three or more members
supporting it.
3:33:39 PM
MR. HAIGHT referred to the open meetings act, which is the
majority or more than three. As a rule of thumb, he said, there
cannot be four board members working on something and discussing
it as it needs to be an open meetings, although three members
could.
3:33:58 PM
REPRESENTATIVE SEATON concluded that the discussion is not about
being at a meeting, amending a proposal that has the support of
at least three members of the board. He related that he could
understand some of the language if a proposal is generated to
send off to the public, but if the members are at a meeting and
the notice does not apply ... he said he needs more information
on how the provision is read.
MR. HAIGHT opined there is a difference in terminology and that
a board generated proposal is not an amendment to an existing
proposal. In the event that is going to be what it is, it needs
to be defined because if that is the case, what is the degree to
which something switches from an amendment to a board generated
proposal is important to capture. By way of example, he noted,
at the Upper Cook Inlet meeting the board dealt with
controversial issues, having received upwards of 10-15 proposals
on an issue, and these proposals were not in agreement with each
other. In working through the public process and through the
committees it came up with a solution not to everyone's liking,
and it wasn't like the proposal in front of them, it was a
combination of things. He noted that it is quite possible, in
this context, if that becomes a board generated proposal it
wouldn't be acting on that amendment at that meeting.
Currently, it is called "substitute language" but they would not
be allowed to act on that at that meeting, he said.
3:36:07 PM
REPRESENTATIVE SEATON requested clarification whether Mr. Haight
meant that under this language the board wouldn't be able to act
on it at that meeting, or rather does he mean that under the
current way it works it wouldn't be able to act on the
substitute language.
MR. HAIGHT clarified that it is under the language of the
proposed committee substitute, although that is his sense and he
could be wrong.
3:36:28 PM
REPRESENTATIVE JOSEPHSON asked what merit Mr. Haight and Ms.
Tibbles find in HB 266 relative to questions of due process and
transparency.
MR. HAIGHT responded a policy has been in place for a couple of
years, put together by the joint boards, due to concern about
board generated proposals due to a controversy over previous
actions. In terms of a position, he commented that Ms. Tibbles
and he will remain neutral on these type of things, this is a
public process, the board process is public, and that is the
correct avenue to develop these things. He said he can only
offer examples of how it works, and the cases before them, since
this policy has been in place, appears there has been adequate
time for advisory committees to respond. He pointed out that
the sheep proposal is a big issue here, seven advisory
committees responded and provided on time written comments to
the meetings before the proposals were acted upon.
3:38:19 PM
REPRESENTATIVE JOSEPHSON noted a lot of press around mass
resignations from local [committees] due to frustration because
they put a lot of hard work into proposals, make a
recommendation, and the board rejects the recommendation saying
"we're outta here." Not that that happened every day, he
clarified, and quiered whether there was something to the
assertions this bill speaks to, or whether that is just the way
it has to be.
MR. HAIGHT answered he has reviewed reports from the board
dating back to the early 1980s, and the advisory committees have
always felt they haven't been listened to. He opined it is
something that needs to be addressed, be cautious of, and make
certain the advisory committees have adequate resources and time
to respond. The example Representative Josephson cited was the
Anchorage Advisory Committee and, he opined, the same feeling is
consistent with the Fairbanks Advisory Committee.
Interestingly, with those committees, unlike others, they are
within an urban population with representative users that go all
over the state, and are providing comments and recommendations
for places outside of their area, he explained. Oftentimes, by
that very nature, a board may be addressing an issue and there
will be dueling advisory committee responses. He recalled at
the Upper Cook Inlet meeting approximately eight advisory
committees responded to that meeting and on most subjects were
split 4 to 4. He said he does not know what a board is to do
other than take all of the good advice it can and attempt to
reach a conclusion, and this is always a concern for advisory
committees. These advisory committees do work hard and
sometimes fairly do not feel appreciated, he acknowledged.
3:40:32 PM
REPRESENTATIVE JOSEPHSON noted that within Board of Game packets
published there are Alaska Department of Fish & Game (ADFG)
proposals, and asked whether any of those proposals are
impromptu, last minute, presented with insufficient notice, lack
of due process, or questionable amendments going far beyond the
scope of the original idea. He asked whether there has not been
any criticism on the presentation of ADFG's own proposals, and
not the merits of the proposals.
MS. TIBBLES replied that the department submits proposals by the
proposal deadline, it utilizes the change request policy, and
attends the meetings to assist with substitute language at the
meeting. Although, there may be occasions during the meetings
where the department brings up an issue to the board, but
nothing comes to mind, she said. With regard to the board
generated proposals, those are bigger issues and the recent ones
were not at all brought forward by the Alaska Department of Fish
& Game during the last few years, she said.
CO-CHAIR TALERICO opened public testimony.
3:42:39 PM
WAYNE HEIMER related that he worked for the Alaska Department of
Fish & Game, in Dahl Sheep specifically, for 25 years, and
within the last 20 years has observed and participated in the
Board of Game's business as a civilian. Over his many years of
observation, he concluded that the Board of Fisheries process is
creeping into the Board of Game, and commented that it may be
appropriate in fisheries management for the Board of Fisheries
to be the manager, but game are not fish and the process needs
to be a bit different. He said, it appears everyone wants the
ability to manage things as though it had instream salmon. In
speaking to his many years working within the Alaska Department
of Fish & Game he could not recall any issue that was so
important it couldn't have waited and gone through the process,
he remarked. Although, there was a time or two when the caribou
were about to be eaten by the wolves and they couldn't get the
commissioner to declare an emergency so the divisions could work
on it. As far as Section 3, AS 16.05.255(l) [page 3, lines 3-
25], he opined that the answer to all of the concerns about
amendments and when to alter a proposal could be simply dealt
with by telling the Board of Game it does not need to introduce
anything, it doesn't need to amend anything, it can act on what
has come to them through proper channels and that will solve a
lot of problems.
3:44:30 PM
REPRESENTATIVE JOSEPHSON referred to Mr. Heimer's statement
regarding not amending anything, and remarked that it appeared
stifling. He offered a scenario of the board having near
consensus with the need to tweak something, and asked what he
meant by not amending something.
MR. HEIMER responded, "Exactly that" because he could not recall
any situation in his experience that has been so critical it
couldn't have waited. He then opined that the Board of Game
does not need the authority to amend a proposal because issues
are not ever that critical. An example might be taking an
action to prohibit the threat of the possible use of drones
which would affect conservation and development of wildlife
resources, which is the Board of Game's job, he said.
3:45:51 PM
REPRESENTATIVE SEATON surmised that if there are four quite
different proposals dealing with sheep, Mr. Heimer's suggestion
is that if the board does not see a proposal it likes exactly as
written without an amendment, it should put off any action until
it next considers that topic.
MR. HEIMER responded that is his suggestion.
3:46:22 PM
CO-CHAIR TALERICO noted that he believes he is familiar with Mr.
Heimer and that he was a sheep biologist over 25 years.
MR. HEIMER said, "That's correct."
3:46:49 PM
MARK RICHARDS, Executive Director, Resident Hunters of Alaska,
advised he was speaking for the Resident Hunters of Alaska and
would like to get the committee back on track about what this
bill does and does not do, and why it was posited by
Representative Wilson. He referred to the 3/23/16 letter from
the Resident Hunters of Alaska, and noted that it offers
background on why this legislation is necessary. He explained
that during the January 15, 2015 work session, Chairman Ted
Spraker and Vice Chairman Nate Turner posited two board
generated proposals (Proposals 207 and 208) related to sheep
hunting that contained ideas never before expressed by the
public. The next month there were approximately 30 sheep
proposals before them. He reiterated that the joint boards
developed four criteria for board generated proposals and
Proposals 207 and 208 did not meet any of the four criteria as
they were outside the public process and disenfranchised the
public. One month later at the Region 4 sheep town hall
meeting, 167 members of the public were present and given the
opportunity to testify except, he said, before testifying
Chairman Spraker advised the public to focus their testimony
specifically on board generated Proposals 207 and 208. Thereby,
he said, the board generated proposals completely discounted all
public proposal before the board that came through during the
correct process. He pointed out that Representative Wilson's
legislation will have absolutely nothing to do with the board
making amendments to proposals before them as that is the
board's purview. A member can offer an amendment and the Board
of Game votes on it, and the Resident Hunters of Alaska have no
problem with that. Although, the Resident Hunters of Alaska do
have a problem with the board generating proposals that fall
outside of its own criteria, subverts the public process, and
disenfranchise the public. He explained that this legislation
is an unfortunate necessity due to the Board of Game going out
of control and attempting to do things outside of the public
process.
3:49:56 PM
KAREN GORDON spoke in support of HB 266 and advised she is in
agreement with the previous testifier. The committee substitute
is necessary to provide needed parameters for the Board of Game
to maintain its statutory role as regulator and not try to be a
manager as that job belongs to the department. She related that
the board failed to abide by its own criteria in creating
Proposals 207 and 208, against overwhelming testimony by the
advisory committees and the public on those proposals. Yet, she
commented, the Board of Game pushed them anyway and when the
board chooses to create its own proposals it takes the process
out of the hands of the public. The board needs to take
proposals and not make them and for that reason, she asked that
Section 3, AS 16.05.255(l)(1), page 3, line 9 be changed from
three members of the board to unanimous consent. She referred
to language in Section 2, [which would amend AS 16.05.255(c)],
on page 2, lines 28-31, which read:
If the board [BOARD OF GAME] denies a petition or
proposal to amend, adopt, or repeal a regulation, the
board, upon receiving a written request from the
sponsor of the petition or proposal, shall, in
addition to the requirements of AS 44.62.230, provide
a written explanation for the denial to the sponsor
not later than 30 days after the board
MS. GORDON paraphrased that if the board does not agree or does
not adopt a proposal provided by the public or the advisory
committee it is required to provide a written reason. She
commented that to her knowledge the board has not done that
ever. In general, she related, she is against board generated
proposals in that the board does not seem to abide by them even
when it has criteria. She said she appreciates this legislation
with the one change regarding unanimous consent.
3:52:39 PM
REPRESENTATIVE JOSEPHSON recalled that recently Proposal 207 was
affirmed by the board because recently the board was asked to
reconsider, voted to reconsider the proposal, and the board
reaffirmed that proposal. He asked whether that information
helps her to feel better that the board revisited this
contentious issue.
MS. GORDON answered no, because the board created this proposal
against overwhelming public testimony. She opined that it is
important and incumbent upon the board to take that into
consideration, it didn't do that, and it ignored both written
and public testimony on both proposals.
REPRESENTATIVE JOSEPHSON referred to her comment regarding the
need for unanimity on page 3, line 9, and advised the board can
only act on a proposal in-cycle and that wildlife changes
vastly, and he asked whether the board needs to intervene in an
emergency. He asked whether the board should be allowed to do
that even when there is not unanimity.
MS. GORDON replied that this is not about emergencies but rather
board generated proposals, proposals the board thinks up itself,
and she pointed out that that question is not pertinent to this
discussion.
REPRESENTATIVE JOSEPHSON clarified that it appears that it is at
page 3, line 22.
3:55:35 PM
MIKE TINKER noted he is speaking on behalf of himself, he has
been with the Fairbanks Advisory Committee for well over 20
years, and he has worked on this issue for many years. He
related that on and off there have been similar problems with
the boards, and in the event the Board of Game had followed its
written procedure there would not be this issue today. He
pointed to page 2 page 15, and deleting the words "sport hunting
and subsistence" thereby moving solely to regulating hunting,
and noted there is no definition in statute on sport hunting.
He said there are separate procedures for emergencies, are taken
up separately, and do not get into the board generated proposal
arena at all. He related that the real dichotomy here is that
the public and the volunteer advisory committees put a huge
amount of emphasis on the process. The board does not accept
anything unless the procedure is followed to the letter, and
supporters of the legislation are asking that the board hold
itself to the same standard.
3:58:10 PM
CO-CHAIR TALERICO offered his understanding that the department
has the ability to have emergency regulations.
MR. TINKER replied absolutely. These emergencies are a bit
different with fish and game than they are in statute as far as
holding them to a minimum like that. Although, he explained
when a conservation concern comes up for an individual species
or in a given area, there are four or five avenues where those
concerned can ask for emergency consideration. There is
criteria to meet, the data is provided, and the board is asked
to take it up as an emergency situation. He asked the committee
to keep in mind that, as in other regulatory processes, an
emergency order is only good for a few months.
3:59:34 PM
AL BARRETTE noted he is a long time advisory committee member in
Fairbanks, in a short period of time he will be a Board of Game
member, and that he has a lot of expertise in this field. He
attended the 2013 joint board meeting wherein the joint boards
created four criteria to ensure the public and the advisory
committees that the boards would not generate a proposal without
going through the process steps. That only lasted one or two
years on the Board of Game side with Proposals 207 and 208.
Furthermore, he opined, the board believed Proposal 207 would
help do things. Except, he commented, the Board of Game didn't
allow enough vetting of that proposal to understand that there
are at least eight resident sheep hunts ending after August
10th, wherein a person is lawfully allowed to use an aircraft
for spotting sheep. The Board of Game then passed a sheep youth
hunt this year that starts before August 10, 2016, and use an
aircraft for spotting sheep, he said. Now, he commented, there
is a certain time an aircraft cannot be used for spotting sheep,
and a certain time a person can and still harvest the sheep. He
related that that is the problem with trying to push things too
fast, not vetting, and not understanding the effects of what is
being attempted.
4:01:59 PM
STEVEN FLORY advised he is a former member of the Anchorage
Advisory Committee, and a former member of the Wild Sheep
Chapter in Alaska. He advised he has been involved in the crux
of a lot of this, including the resignation of seven members of
the Anchorage Advisory Committee over actions taken by the Board
of Fisheries, followed one year later by six resignations from
advisory committees due to actions of the Board of Game. This
legislation is sorely needed, it doesn't go far enough, and it
doesn't address enough issues, which is the House Resources
Standing Committee's job, because the legislature has authority
over fish and game resource policies. Previous legislatures set
up a working system but the system was subverted, destroyed, and
distorted and it no longer functions as it was intended. He
described this as the first step in fixing a broken system.
REPRESENTATIVE SEATON referred to prior testimony and the
suggestion that the board only take proposals from advisory
committee and the public, the board should not be able to amend
the proposals in any manner, and in the event that was not
sufficient the board should do it at the next meeting. He asked
whether his position is that the board should not be able to
amend proposals that come before them in the booklet.
4:04:15 PM
MR. FLORY replied he does not believe HB 266 does that, although
he does believe there is nothing so pressing in any of the
regulations that they must go in immediately, and in fact most
of the time they don't go into effect for a full year later. In
fact, he remarked, if the Board of Game wishes to amend
something it should send it back to the advisory committees for
additional recommendations, and he noted that the advisory
committees are there to give [recommendations] to the board.
The problem, he pointed out is that the Board of Game is
functioning as its own advisor and the board is not interested
in what the advisory committees or public has to say.
4:05:49 PM
ROD ARNO, Executive Director, Alaska Outdoor Council, advised he
represents the statewide Alaska Outdoor Council with 48
individual clubs, and it supports this legislation. He
commented that within his 35 years of policing the Board of Game
he has never seen so much strife specifically among hunters,
specifically, being divided over the issue of the way this has
proceeded on Dahl sheep proposals. The board packet contains
all of the proposals, of which there were 35 sheep proposals,
and he stressed that it is important the public take the
proposals in their entirety. When the chairman came to Juneau
for the work session and proposed these two proposals, it set
back the entire process of the advisory committee's
participating in the process and coming up with a plan to
address the 35 proposals. It is a continuing problem and, he
stated, the advisory committees and public are being
disenfranchised because currently the board is heavily
influenced by commercial users, as well as trophy hunting non-
governmental organization (NGO). Previously, he said, the board
was more balanced with more representatives addressing the
Alaskan public, and because sheep is a trophy issue this problem
has elevated as high as has. In the event the board had looked
at it and addressed its policy, this legislation would not have
been necessary because the policy is clear on the criteria it
jointly developed with the Board of Fisheries for developing
board generated proposals. The purpose of this legislation is
to have it in statute in the event there is recourse should this
issue arise again, he said.
4:09:41 PM
REPRESENTATIVE SEATON requested a summary of the four criteria
and Mr. Arno handed him a copy.
CO-CHAIR TALERICO noted it appears Mr. Arno is the historian for
the Board of Game meetings and asked for a description of
changes he has seen.
4:10:25 PM
MR. ARNO specified that on the hunting side of the Board of
Game, not the Board of Wildlife, the regularly participating
individuals in the process have better harvesting and clearly,
are not worried about the conservation. This is about who is
harvesting the resource and the availability of harvestable
resources, wherein the Board of Game directs the managers that
it needs more harvestable surplus and directs them to more
actively manage. Looking at it with those players on that, what
happens is when commercial interest gets so strong on the
members of the board there is a slant and that slant is always
away from the advisory committees, he said. Particularly on the
issue of Proposal 207, in that there were three board meetings
and overwhelmingly the testimony opposed Proposal 207, and the
reason being that there was not a conservation problem and, that
the FAA already made what Proposal 207 did illegal. The added
stipulations put on that only negatively affected resident
hunters because commercial hunters have the opportunity, time,
and wherewithal to get their camps out and know where the sheep
are. Nonetheless, he noted, a resident hunter may only have two
weeks off to plan that time, and if they have an aircraft they
would go out and search for an area to hunt sheep. Those
Alaskan residents were more negatively affected by this than the
commercial user, and they were not being heard by this board. A
situation has been created that is causing more than just the
policy the joint boards adopted in 2014, he said.
4:12:51 PM
REPRESENTATIVE JOSEPHSON referred to testimony stating that the
board's ruling was against a great number of testifiers, and
related he has seen this happen frequently in the legislature.
He offered a scenario of 90 percent of the public testifying on
behalf of "X" issue, and the powers that be going in the other
direction. He quiered Mr. Arno as to whether it is his view
that that action is prohibited or whether the Board of Game can
disregard the great propensity of the testimony and determine it
sees the issue in a different way. Representative Josephson
asked whether that is the issue.
4:13:57 PM
MR. ARNO responded, "No, that's not the issue."
REPRESENTATIVE JOSEPHSON advised that when he reviewed Proposal
207, there was a description regarding out-of-state versus Mr.
Arno's constituency parallel, except, Mr. Arno testified there
really isn't a sheep conservation issue. Even so,
Representative Josephson stated he has repeatedly read there is
a huge statewide sheep conservation issue and asked whether the
state has a bounty of sheep with no issue.
MR. ARNO responded that the Alaska Department of Fish & Game
advised there was not a conservation problem with Dahl sheep in
Alaska, because the department has repeatedly specified at each
meeting, including the March meeting, that there was not a
conservation concern.
4:15:11 PM
REPRESENTATIVE SEATON surmised that the first consideration is
whether it is in the public's best interest. He asked whether
Mr. Arno was saying that the Board of Game did not address that,
or that Mr. Arno just disagreed with the board's finding that it
was in the public's best interest.
MR. ARNO answered that the Board of Game did not address any of
the four [criteria] when it adopted its board generated
proposals.
REPRESENTATIVE SEATON further surmised that the Board of Game
did not look at the urgency, the current process, or anything
like that.
MR. ARNO replied correct.
4:16:02 PM
RON SOMMERVILLE advised that he worked for the Alaska Department
of Fish & Game (ADF&G) as a biologist for 25 years, and served
on the Board of Game for 6 years. Alaska has frequently been
touted as having the most democratic regulatory process in the
United States because its citizens have a phenomenal amount of
influence on the regulatory process with 80 plus advisory
committees. He expressed concern that the testimony previously
offered is the result of major changes, the point is that both
fish and wildlife have gone to three year cycles and the results
are now being seen. The advisory committees are upset because
they are not only not being heard, and are only heard once every
three years on issues important to them. Speaking as a Juneau
resident, he said he is a member of the Territorial Sportsman
and previously they commented on issues in the Brooks Range, but
now it avoids statewide issues because it doesn't have the time
or manpower to deal with it. His perspective, he said, having
served on the Board of Game, the board can set its own agenda
and even though it has a three year cycle, it can throw things
into the middle of an agenda anytime it believes there is a big
issue. He then related a classic example, "Cook Inlet ... I
mean it is three cycle Cook Inlet? Never happen. If it doesn't
come up every year everybody gets upset including legislators
because of their constituents are beating up on them."
4:18:53 PM
MR. SOMMERVILLE advised he is on a sheep working group
attempting to come up with a unanimous decision that might help
the board, and when reviewing a proposal he asked himself
whether it does harm, and noted it does not affect the boards or
departments emergency authority, which is spelled out in
statute. This proposal has to do with transparency and he
related that when people get upset with the process then the
product becomes secondary, and opined that is not being attacked
here just because people did not like the product. The issue
here is that from the beginning people became angry because [the
board] was not following the rules, and speaking as a former
board member, and chairman, board members always try to do the
best they can to make sure the public is satisfied with due
process, he explained. He said he does not agree that the board
should not be allowed to amend regulations because when going
through all of the proposals, there may be 8-10 proposals
dealing with one subject and they will be combined into a
particular proposal with bits and pieces of possibly all
proposals. He reiterated that to have a proposal go back
through a three year cycle again would be unreasonable and he
disagrees with some of the previous testimony on that issue.
4:20:48 PM
REPRESENTATIVE JOSEPHSON said he agrees with Mr. Sommerville's
statement that when people feel the process has been interfered
with, the product does not merit the same attention. Mr.
Sommerville stated he is on the sheep working group and the
documents say that that working group has been under attack
because it acted similar to a subcommittee, there wasn't
sufficient transparency, and it was working behind the scenes.
MR. SOMMERVILLE advised he has not attended all of the meetings
but did go to the last meeting, and offered that the moderator
tried to get to some consensus points they could agree upon, and
almost everyone agreed there is no conservation problem. Alaska
has a declining sheep population but that is not necessarily a
conservation problem, except in the area of subsistence, hunters
are only harvesting full curl rams. The state does not have a
conservation problem although it may have an allocation problem
and that is what is driving this. He related that the state has
a situation wherein non-residents want to hunt sheep and if it
is determined to be one sheep every four years, it doesn't
affect the non-residents but it does affect Alaskan residents.
The process has become so convoluted that people no longer trust
the Board of Game and he worries because Alaskans have tried to
build a system that will withstand a long period of time, he
remarked.
4:23:18 PM
REPRESENTATIVE TARR, with regard to the complexity of the issues
and the inability to participate outside of a person's immediate
region, offered an idea of separating the jurisdiction of the
board and asked whether that would be a useful exercise.
4:23:52 PM
MR. SOMMERVILLE replied that he would have to look at that
because some issues must be addressed on a statewide basis in
that consistency is part of it. For example, he said, the
intensive management program established four or five criteria
when it first started in "19," recognizing that many people in
the state were opposed to it as well as in support of it, such
as a reasonable chance of success, reasonable amount of money to
operate the program, members must be able to follow through, and
other criteria. He stressed that it should not be done on a
case-by-case basis and should be applied on a statewide basis.
There have been proposals to break up the Board of Fisheries or
the Board of Game into regions or whatever and, he pointed out,
some of that would work but this probably isn't the best time to
talk about spending that kind of money. He reiterated that he
worries about the three year cycles, and that the staff has
explained to him all of the reasons for it and it kind of makes
sense, but he believes they will alienate the advisory
committees and they will start to fade away. Even though they
complain about dealing with fish and wildlife at the same time,
when you do it over a three year period some of the people will
disappear, he related.
4:25:20 PM
REPRESENTATIVE SEATON noted he did serve on an advisory
committee in Homer for years and understands the advisory
committee's frustrations with the boards not following their
directions, especially when the harvest is in the local area and
the board considers all of the advisory committees' opinions
across the state. He surmised that there were three meetings
about 30 days apart, and asked whether there was not sufficient
public notice in that timeframe, and whether the seven advisory
committees sent in their written comments timely. He said he
would like to determine if that notice process over a series of
meetings is inadequate because he was unsure whether the
discussion is about process. It appears, he noted, that people
are unhappy with the decision and the lack of consideration of
the responses the advisory committees produced to the board.
MR. SOMMERVILLE deferred to Mr. Arno for an answer.
4:27:14 PM
MR. ARNO stressed the need to look at all of the proposals in
total. He reiterated that the advisory committees started
deliberating on the proposal during fall. Then during the
January work session and 30 days before the meeting, a notice
was sent out by board support advising, "Here, we got these."
He remarked, "But that threw their whole process of
participation. So, that was the part about being
disenfranchised." He said subsequently the chairman advised, on
the record, that guides called and asked for these proposals.
He pointed out that is the issue of being disenfranchised. He
quipped that if he had known of the loophole, he would have
called the chairman and told him what he wants put in. The last
time [the advisory committee] deliberated on Proposal 207 was a
year later. The people of Alaska who are elected to those
advisory committees feel disenfranchised by the process, he
said.
4:28:48 PM
REPRESENTATIVE SEATON concluded that the timing of the notice
was not the problem, but rather there was not adequate
consideration of the proposals that had originally been
published and the comments from the advisory committees.
MR. ARNO responded yes, to the point that the individuals who
put comments in and participated in the advisory committees
looked at the issue of the board not going through the criteria
for the generated proposal. He remarked that it wasn't that
there was an insufficient way to deal with the concerns of
conflict between users, they had all submitted their own
proposals to go into the packet for everyone to review.
Subsequently, when it got to the end of it they commented on not
only their proposals but other people's proposals as to how to
relieve the conflict. He related that by putting this
legislation into statute it will give the public a bigger hammer
to point out whether or not the board looked at the criteria
before choosing to submit a board generated proposal.
REPRESENTATIVE SEATON, in referring to the 60 day notice instead
of 30 day notice, he remarked that when doubling the notice time
it could affect the process that would go forward, and it
appears that other elements need to be corrected other than the
30- to 60-day notice.
MR. ARNO agreed that that is one piece of it.
4:31:10 PM
CO-CHAIR TALERICO held over HB 266.
CO-CHAIR TALERICO commented that over the years he has dealt
with the frustrations of the Middle Nenana River Fish & Game
Advisory Committee in that it sometimes has been told it needs
to comply with three other advisory committees in order to make
a decision to move forward with board proposals. An adjustment
to policy is not placing blame on the department or anyone else,
it is something the committee needs to determine as to whether
or not that would be the best direction to move forward. The
bill would be heard at the next committee meeting, he advised.
[HB 266 was held over.]