Legislature(2003 - 2004)

04/04/2003 01:38 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
SENATOR OGAN asked why wolf, fox or lynx was dropped.                                                                           
CHAIR  SEEKINS  responded  that  is an  oversight  and  could  be                                                               
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                                                               
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                                                               
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                                                                    
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.                                                                  

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