Legislature(2003 - 2004)
04/04/2003 01:38 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 155-PREDATOR CONTROL PROGRAMS CHAIR SEEKINS announced SB 155 to be up for consideration and said the committee substitute clarifies how the Board of Game can authorize airborne shooting of predators and adds that the board shall establish predator reduction objectives and limits; methods and means to be employed; and who is authorized to participate. SENATOR OGAN asked why wolf, fox or lynx was dropped. CHAIR SEEKINS responded that is an oversight and could be corrected. SENATOR THERRIAULT motioned to adopt CSSB 155(JUD)\H, 4/4/03 as the working document. There was no objection. MR. MATT ROBUS, Acting Director, Division of Wildlife Conservation, Alaska Department of Fish and Game (ADF&G), urged the committee to consider referencing objectives established under the intensive management law, in 5 AAC 92.108, which was deleted. He pointed out that it's important to have those objectives for the beginning of something as important and controversial as a predator control program. The objectives are very rigorous. MR. ROBUS referred to page 1, lines 11-13 and advised that the department would oppose reducing the role of the Commissioner in making the decision to go forward with a predation control program. He said that provision allowed the Commissioner to make a finding in the case in game management unit 19D East at McGrath. CHAIR SEEKINS asked why he thought it was important for the Commissioner to give a written finding to what the biologists have already testified to. MR. ROBUS replied the biologists can certainly establish where a particular prey population sits with respect to the different objectives, but in the end, it's the administrator of that department and the administration in general that needs to decide whether to commit the funds and resources to carry out a program. CHAIR SEEKINS asked if the finding letter would also give the Commissioner the opportunity to override the Board of Game by "pocket-vetoing" it. MR. ROBUS replied that is true; the Commissioner has the discretion to follow through with a recommendation from the Board of Game. CHAIR SEEKINS said the board makes decisions based on testimony from ADF&G and asked why the Commissioner should still have the right to veto the program. MR. ROBUS replied it is his understanding that the Commissioner, as the head of the department, has to be the person to make the decision as to whether a program is going to go or not. Language on page 2 (e) creates a problem, but having the board establish objectives for such a program is appropriate. Recently, in McGrath, the board gave the administration a list of methods from which to choose and he believes it would be the executive's decision as to how to proceed. CHAIR SEEKINS said Mr. Robus was saying in effect that the executive should be able to override the appointed Board of Game on methods, means, limits, etc. by simply not writing a letter. MR. ROBUS responded he is only saying that it is the Commissioner of the Department of Fish and Game who should accept the recommendation from the board, assess all the factors, and then make a determination as to what his or her department is going to proceed to do. CHAIR SEEKINS noted the Governor said department employees and assets were not to be used in the McGrath area to provide wolf control this year and that the local people have to do it. He didn't think there was language forcing the department to actually fund or execute the program. MR. ROBUS replied that his understanding is that Title 16 is in the department's jurisdiction. CHAIR SEEKINS said, "On how to expend your dollars, correct?" MR. ROBUS replied, "Correct, but also how to mount game management programs." CHAIR SEEKINS asked if that wasn't the prerogative of the Board of Game. MR. ROBUS said he understands that the Board of Game has the prerogative of establishing regulations for the management of fish and game. SENATOR OGAN asked if he was familiar with art. VIII, sec. 4 of the Constitution that requires management on a sustained yield basis that is subject to preference amongst beneficial uses. MR. ROBUS replied that he is familiar with that. SENATOR OGAN said he understands that the Legislature has the constitutional responsibility to manage the public trust of fish and game and they delegate that responsibility to the Board of Game. The department provides information to and carries out the board's policies. MR. ROBUS said that is correct. SENATOR OGAN asked why the department feels it should have veto power over policy setting that the Legislature delegates to the Board of Game. MR. ROBUS replied he is saying that the Commissioner needs to have the ability to choose between all the different things that have to be done across the state and, after a quick reading of the CS, it seems like an automatic pipeline into a predator control program. The department might not be able to deal with everything that goes through such an automatic process. The Commissioner needs to be able to direct how the department will conduct its work. CHAIR SEEKINS asked if that isn't how the department has essentially stopped all predator control in the state of Alaska. MR. ROBUS submitted that it wasn't necessarily the department, but there has been a lot of frustration from different quarters. CHAIR SEEKINS said the instructions came from on high, but they effectively blocked the recommendations of the Board of Game to institute one. SENATOR OGAN said he thought the issue at hand was the veto power in current statute. He asked whether the Legislature is within its right if it wants to fund helicopters for predator control and delegate the authority to do that. MR. ROBUS responded that he thought it was within their ability to say that. SENATOR THERRIAULT asked if there is a problem with deleting wolverine, fox and lynx on page 1, because they don't bring down any big game animals. MR. ROBUS replied he is correct and the animal they are talking about in predator control programs is the wolf. He didn't know why the other species were included in the first place. SENATOR THERRIAULT asked if he referenced AS 16.05.255(g) on page 1, line 14 to keep it in the statute. MR. ROBUS replied yes, "That is the portion of the intensive management law that requires the board to establish harvest and population objectives for identified prey populations." TAPE 03-17, SIDE A 3:17 p.m. SENATOR THERRIAULT asked if his suggestion could be achieved by inserting the bracketed language on line 13 after "board." MR. ROBUS said he thought that would work. SENATOR THERRIAULT said according to a legal drafter, the last initiative that passed said all same day airborne had been outlawed, but that is not the way the statute works. MR. ROBUS replied that is their interpretation. Current statute does not prohibit participation by the public in an aerial or same-day airborne-based predator control program. It bans same-day airborne hunting, but it appears...the first section in this statute allows the public to participate in an approved predation control program. The second part of the statute allows the department without going through all the procedures of the request from the board, the finding by the Commissioner, to go ahead and do a predation control program. SENATOR THERRIAULT said he has received e-mails charging that we are stripping the will of the people, but clearly the people didn't prohibit that when they amended the law in 2000. MR. ROBUS replied: My understanding of what the referendum did in 2000 was to strip away the words "and agents" in two places in the second part of the statute. Up to that point, there was a way for the department to associate people with our operation as agents and go ahead and conduct a predator control program without going through the hurdles represented in the first part of the law. The referendum took those words away so that the second pathway, the least restricted pathway, is available only to the department. SENATOR OGAN said he has been told more than once that biologists are not allowed to publicly express their professional opinion on predator control. He asked if that is true or false. MR. ROBUS replied: To the best of my recollection and knowledge, I don't remember any formal, any gag order. I think what often happens in these situations is we've got professional wildlife biologists that are trained in manipulating populations to produce objectives and at the same time, we're members of an organization that works under policies set by the people up the chain of command. There is sometimes significant tension between those things. I think that on any given year or month there may be biologists who have their opinions on biological situations that may be somewhat at odds with policies, but that's been happening through every administration. I've been through four or five administrations. [END OF TAPE - 03-17, SIDE B blank] TAPE 03-18, SIDE A SENATOR OGAN said his point is that a number of times the Legislature tried to make the administration carry out the policy of the Legislature, but the administration always seemed to have the ability to end-run it. If there is a gag order from above, they are not going to be able to manage on a strictly biological basis. He suggested language to address that. MR. ROBUS responded: As long as I'm involved at headquarters and as far as I know, we have always allowed and encouraged our professional staff to give their professional opinion to the Board of Game. We do not give doctored information and we do not tell people they can't say things that they believe are facts in the case. MR. TOM SCARBOROUGH, Fairbanks resident, said he supports CSSB 155 and it incorporates most of his suggestions. He said the Governor and department had not done what the Board of Game wanted with wolf control. He said: "It appears to me that the Board of Game is an extended arm of the Legislature and carries out the Legislature's trust responsibilities." MR. SCARBOROUGH asserted the legislation clarifies the issue by clearly stating that it is the Board of Game's decision to fund it. He noted two Alaska Supreme Court decisions in 1976 and 1983 along those lines. He asserted that the system was manipulated by the past and current ADF&G staff to prevent any predator control. He remarked: This resulted in a finding by Commissioner Duffy that predator population objectives have been met [in 19D] and thus no wolf control is needed. This is at direct odds with hype coming from ADF&G on low moose populations in 19D East...The population objectives are one moose per square mile. Pre-year-2000, that was three moose per square mile.... He didn't find anything in statute that gives the Governor the authority to dictate methods and means over which the Board of Game has full authority. He suggested that language on page 2, lines 19-20, "airborne or same day aerial shooting", is redundant. The board is given that authority in section 1(a). MR. ROD ARNO, Wasilla resident, said: ...After nine years of having intensive management legislation, I have yet to see one wolf controlled. Clearly, the problem here is with the Commissioner. It's not with the department or with the Legislature... He said, "I think this substitute is a band-aid, but if it will get it done, if it will get one wolf controlled before the summer tourist season, I'll be thankful." He thought the tourist boycott threat is a scam and supported the addition of section 2, even though it is redundant. He noted that the referendum from SB 267 only lost by 20,000 votes. SENATOR THERRIAULT referred to how the A and B sections work together and asked if Mr. Robus didn't say that the less restrictive route was maintained for department personnel. MR. ROBUS responded that was his understanding of existing statute and he didn't think the CS took that away. SENATOR THERRIAULT said the A section says you can't take airborne, "However, the board may authorize a predator control program involving shooting from the air." It doesn't say for department personnel only. He asked if they could contract it out or make it available to members of the general public to participate in a predator control program spoken of in the A section. MR. ROBUS replied: That's what I'm meaning by the first of the two pathways. That's where the Board of Game can establish a predator control program that includes more than just the department and if the Commissioner makes a finding under the current statute that predation is a significant factor involved in the decline or low- level of the herd and that aerial methods are appropriate to change that, then that program can proceed with public people involved in some manner. SENATOR THERRIAULT said he thought Mr. Robus indicated that it is only for department personnel. CHAIR SEEKINS remarked only in the B section and said: "...it never took any alternative away from the ADF&G to be able to do predator control, because all the department had to do was give a letter to the Board of Game certifying the findings and they could have used agents...employees...private individuals, based on the decision of the Board of Game at that time. Is that not correct? MR. ROBUS responded in regard to 19D East and the request from the board: ...recognizing at that time that department personnel might not be includable in the program, they asked the Commissioner to make a finding under the first part of the statute to certify the three things that the statute requires - predation being important and that aerial methods would be appropriate, etc. And the Commissioner declined at that time on the basis of the fact that that population objective for that moose herd had been lowered as part of a compromise at a time when our moose survey information was unfortunately predicting lower numbers than were actually there. CHAIR SEEKINS said if they could be having a predator control program right now without the letter from the Commissioner if the proposed CS were in effect. MR. ROBUS replied yes, the CS would put them in that mode, but, "The original bill, if it allowed them to consider harvest objectives, would allow the Commissioner to make a finding to go ahead with the program there, also." CHAIR SEEKINS said he was not pointing a finger at this particular Commissioner at this time. He held SB 155 in committee and adjourned the meeting at approximately 3:40 p.m.