Legislature(2003 - 2004)
05/17/2003 12:46 PM RLS
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 155-PREDATOR CONTROL/AIRBORNE SHOOTING CHAIR ROKEBERG announced that the first order of business would be CS FOR SENATE BILL NO. 155(RES), "An Act relating to predator control programs; and providing for an effective date." Number 0133 SENATOR RALPH SEEKINS, Alaska State Legislature, spoke as the sponsor of SB 155. Senator Seekins explained that SB 155 revises language within Section 16 of the statutes that relate to the regulation of fish and game. These revisions provide the Board of Fisheries (BOF) and the Board of Game (BOG) and the Alaska Department of Fish & Game (ADF&G) with the necessary tools for the management of game populations throughout the state. He pointed out that the first alteration of the statute clarifies the legislative intent with regard to airborne predator control programs. The second alteration allows game population objectives to be taken into consideration in determining whether a predator control program should be implemented. He noted that the second alteration considers other objectives such as predator objectives and harvest objectives by humans. Therefore, this legislation allows BOG to use both prey and game population and harvest objectives when making a determination with respect to the use of predator control programs. "Senate Bill 155 makes changes that allow the fish and game boards as well as the [Alaska] Department of Fish & Game to better manage wildlife by balancing predator and game populations based on the best science available," he stated. CHAIR ROKEBERG informed the committee that before it is CSSB 155(RES) and there is an amendment included in the committee packet. The amendment is as follows: "The use of state employees or state owned or chartered equipment, including helicopters in a predator control program is prohibited without the approval of the commissioner." SENATOR SEEKINS explained that there is concern with regard to separation of powers, specifically regarding whether BOG could force ADF&G to use state-owned helicopters, aircraft, et cetera or state employees to carry out a program that has primarily been designed to use private controlled programs. Therefore, Amendment 1 would conceptually insert a new subsection (f) on [page 2, line 24] of CSSB 155(RES). He explained that Amendment 1 would mean that the BOG couldn't force ADF&G to do the aforementioned. Senator Seekins said that he is still trying to accommodate the governor's concerns, particularly with regard to making the decision based on the best scientific information available. Senator Seekins explained that first there must be a game management plan for a particular game management unit (GMU) in place and there must also be an intensive program in place for that GMU. The statutes, AS 16.05.255(e)(1)-(3), are clear and read as follows: (e) The Board of Game shall adopt regulations to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals of the board in an area where the board has determined that (1) consumptive use of the big game prey population is a preferred use; (2) depletion of the big game prey population or reduction of the productivity of the big game prey population has occurred and may result in a significant reduction in the allowable human harvest of the population; and (3) enhancement of abundance or productivity of the big game prey population is feasibly achievable utilizing recognized and prudent active management techniques. SENATOR SEEKINS stressed that after the above has been done, this legislation specifies: (1) in regard to an identified big game prey population under AS 16.05.255(g) that [COMMISSIONER OF FISH AND GAME ACTING UNDER A REQUEST FROM THE BOARD OF GAME MAKES WRITTEN FINDINGS BASED ON PREY POPULATION] objectives set by the board for the population have not been achieved and [UNDER AS 16.05.255(g)] that [(A)] predation is an important cause for the failure to achieve the objectives set by the board [FACTOR CONTRIBUTING TO A LOW OR DECLINING PREY POPULATION THAT IS INCONSISTENT WITH A GAME MANAGEMENT PROGRAM AUTHORIZED BY THE BOARD OF GAME], and that a reduction of predation can reasonably be expected to aid in the achievement of the objectives [RESULT IN AIDING AN INCREASE IN THE PREY POPULATION OR IN ARRESTING THE DECLINE OF THE PREY POPULATION]; or (2) that [(B)] a disease or parasite of a predator population (A) [(i)] is threatening the normal biological condition of the predator population; or (B) [(ii)] if left untreated, would spread to other populations SENATOR SEEKINS highlighted that this program ensures that any decision to activate an airborne program is based on the best available science. Furthermore, the suggested amendment specifies that BOG couldn't force the use of state employees or state-owned equipment in the enforcement of the program. Number 0635 GORDY WILLIAMS, Legislative Liaison, Office of the Commissioner, Alaska Department of Fish & Game, noted that the department has worked cooperatively with Senator Seekins in regard to possible changes. On behalf of the administration, Mr. Williams expressed the desire to continue those discussions this afternoon in order to develop better language. Therefore, he requested the indulgence of the House Rules Standing Committee to hold the legislation for a while so that the work could continue. REPRESENTATIVE McGUIRE inquired as to the sponsor's thoughts on holding the legislation in committee for further work. SENATOR SEEKINS informed the committee that the [Majority] Caucus feels that it wants the legislation to move forward. He indicated the need for agreement on whether, and to what degree, the commissioner of ADF&G should have the right to veto a predator control program. In the past, the commissioner could pocket veto a predator control program by not writing a letter of authorization. The aforementioned has been eliminated in this legislation. At this point, the program is based on information provided by the department and thus the discussion is whether the commissioner could say that the decision was made without input from the department or with information provided by the department that was interpreted or provided in error. Senator Seekins related his understanding that the governor is concerned that when there is a predator control program, that it's based on the best available science. Therefore, this attempts to find a way, within the separation of powers, to allow the administration to intervene in a legislative action that the [legislature] has authorized the BOG to do. REPRESENTATIVE McGUIRE asked if Senator Seekins supported the delay of this legislation today. SENATOR SEEKINS answered that if this legislation is delayed today, it may not be able to get to the House calendar. Number 0821 CHAIR ROKEBERG announced his intention to take action on this legislation today. He asked if ADF&G agreed with the earlier mentioned conceptual amendment. MR. WILLIAMS said that the conceptual amendment is one part of a larger discussion. He related that he didn't believe the department had any problems with that, although there are other issues for which agreement seems close. REPRESENTATIVE KERTTULA posed a scenario in which the other issues are accommodated and asked whether the governor would be supportive of the legislation if that is the case. MR. WILLIAMS responded, "We'll have to look at things on balance. Again, hoping that ... we can reach some accommodation here." REPRESENTATIVE BERKOWITZ said that he didn't really understand what the amendment accomplished because it seems that the commissioner always has the authority to determine whether state employees or state chartered aircraft can be used in a predator control program, unless [the private individuals] are working for the department. He questioned the authority that individuals not working for ADF&G would have to be engaged as state actors. MR. WILLIAMS replied, "That's correct." He reiterated that this is part of a larger document that included other possible changes. Number 0919 SENATOR SEEKINS clarified that the amendment is probably a reiteration of a fact that already exists. However, [the amendment] would collect existing law and authority into one area so there would be no confusion. REPRESENTATIVE KERTTULA related her understanding that [currently] the commissioner decides [whether a predator control program should be implemented] after input from the BOG. MR. WILLIAMS explained that under current law, the BOG makes the program that is given to the commissioner who is required to make a finding regarding whether the program is necessary. As the sponsor has indicated, the aforementioned process provides the opportunity for a "pocket veto." The language that the department has been discussing with the sponsor and other members would specify a time certain in which the commissioner must take some action or not. Furthermore, the language under discussion would specify some definition with regard to how the action would be taken. Mr. Williams reminded the committee that the language [in the legislation] is a combination of pieces of various legislation and initiatives. The existing language speaking to the findings made by the commissioner is an amendment that was included by Senator Pete Kelly to SB 74 in 1999. Number 1003 REPRESENTATIVE BERKOWITZ asked if any commissioner has ever exercised a pocket veto. MR. WILLIAMS answered that programs have not gone forward under this statute. He pointed out that originally [the purpose of] SB 155 was to deal with a situation in McGrath in order to address objectives. Currently, the prey population objective in McGrath is being met and thus there was a technical question regarding whether the commissioner could move forward with the program when the prey population is being met. REPRESENTATIVE BERKOWITZ acknowledged the concern with regard to the commissioner's ability to pocket veto if the commissioner fails to act. Therefore, wouldn't "this," by default, mean that the commissioner would have to actively say he/she disapproves an action by the BOG. He asked if there is anything that precludes the commissioner from actively vetoing an action from the BOG. MR. WILLIAMS reiterated that work has been done on various iterations of language regarding the veto issue. The administration has recognized [the difficulty with] an indeterminate period of time and no finding. SENATOR SEEKINS pointed out that the current statute provides the commissioner with the ability to pocket veto or approve the BOG's proposed action. There is no statute, in fish or game statutes, that provides the commissioner with the power to veto an action of the boards. In fact, in Peninsula Marketing Association v. Rosier the Alaska Supreme Court said that the commissioner can not veto an action made by the Board of Fisheries. The original intent was to bring the rest of the statutes under that same authority. Number 1153 REPRESENTATIVE BERKOWITZ commented that he is accustomed to working in a legislative environment where laws are promulgated subject to gubernatorial veto. Therefore, he surmised that the Board of Game and the Board of Fisheries are operating in a legislative or quasi-legislative environment and should be subject to some executive branch oversight, which would seem to appropriately come from the ADF&G commissioner. If there is no provision for the ADF&G commissioner to actively or passively be a check and balance to the actions of the BOG, then it seems the mechanics of government are out of balance. SENATOR SEEKINS related his understanding that it's within the constitutional authority of the legislature to set up the statutory process without the ability of the administration to veto it. He recalled that the aforementioned is one of the findings in the Peninsula Marketing Association v. Rosier case. MR. WILLIAM agreed with Senator Seekins that this is one of the only places where this is spelled out in statute. However, he said he understood the Peninsula Marketing Association v. Rosier case to discuss the role of the commissioner and upon what the commissioner would have to base a decision to go against a ruling of the Board of Fisheries. He recalled that such a decision by the commissioner would have to be based on new information and certain criteria. "It wasn't a blanket decision that the commissioner had no power in that instance; it was in that particular instance those powers were not exerted in the proper manner," he said. SENATOR SEEKINS interjected, "Correctly, power granted by the legislature." REPRESENTATIVE BERKOWITZ surmised then that if there is disagreement [over the board's decision], then the only decision would be the courts. He asked if that is correct. SENATOR SEEKINS replied, "Probably." However, he predicted that the current administration and BOG would both want to work cooperatively to accomplish their goals. Number 1315 MR. WILLIAMS reminded the committee that when it comes to a state sponsored program, the BOG doesn't have fiscal powers to push for a program involving state resources. When there is a private predator control program, the Airborne Hunting Act remains and thus the commissioner would have a role in ensuring that those participating in the program have received a state permit in order to comply with the act. REPRESENTATIVE MORGAN turned to the predator control done before 1992 and asked whether it was only state predator control or was there private involvement in the predator control. SENATOR SEEKINS recalled that private citizens were involved as well as state employees. Number 1390 MATT ROBUS, Deputy Director, Division of Wildlife Conservation, Alaska Department of Fish & Game, recalled that private citizens were involved as well as state employees. REPRESENTATIVE MORGAN asked if, at the time prior to 1992, there was concern that [predator control] would run amuck. MR. ROBUS replied that opinions are probably mixed. In reality, the number of people actually participating was fairly low. REPRESENTATIVE MORGAN recalled that the same day airborne predator control program prior to 1992 wasn't a situation in which people were suggesting the eradication of wolves. He pointed out that prior to 1992 there was a healthy moose population, but that changed after 1992. Representative Morgan related his belief that it's wrong to control just the human consumption. There are limited resources, although greater numbers of people want the resource. There has to be some control some place. MR. WILLIAMS responded that much is involved with this issue. The whole issue of predator control seems to be wrapped up in this legislation. He highlighted the governor's support of predator control in a proper manner. Therefore, he said he believes the debate isn't on predator control but rather on the manner in which it can be accomplished with the various branches of government and the public. CHAIR ROKEBERG closed public testimony. REPRESENTATIVE KOTT moved that the committee adopt Conceptual Amendment 1, which reads as follows: Where appropriate in AS 16.05.783, insert the following language: "The use of state employees or state owned or chartered equipment, including helicopters in a predator control program is prohibited without the approval of the commissioner." REPRESENTATIVE KOTT said that he would leave it to the drafters to insert the language in the appropriate location within AS 16.05.783. He related his belief that on page 2, line 19, subsection (e) should be subsection (c) and the proposed language in Conceptual Amendment 1 should be subsection (d) because the two following sections are a penalty section and definition section. CHAIR ROKEBERG noted his agreement. He asked if there was any discussion on the amendment. He announced that Conceptual Amendment 1 was adopted. Number 1558 REPRESENTATIVE KOTT moved to report CSSB 155(RES) as amended out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 155(RLS) was reported from the House Rules Standing Committee.