Legislature(2003 - 2004)

05/17/2003 12:46 PM RLS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                    
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                                                                    
     (A)  [(i)]    is   threatening  the  normal  biological                                                                    
     condition of the predator population; or                                                                                   
     (B) [(ii)]   if left  untreated, would spread  to other                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                  

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