Legislature(2003 - 2004)
04/16/2003 01:00 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 a proposed committee substitute (CS), version S, to be before the committee. SENATOR THERRIAULT moved to adopt version S (4/16/03) SB 155 as the working document. SENATOR ELLIS objected for the purpose of an explanation of the changes. CHAIR SEEKINS said the changes in version S are primarily semantic changes for the sake of efficiency. One paragraph is added that says when the Board of Game authorizes a predator control program it should establish predator reduction objectives and limits, methods and means to be employed, who is authorized to participate, and conditions for participation. He noted he is still working with the Alaska Department of Fish and Game (ADF&G) on how to properly delineate responsibilities. The bill goes to the Senate Resources Committee so that issue will probably be resolved there. SENATOR ELLIS asked if the intent of Section 2 on page 2, particularly the words "methods and means to be employed," is to allow the Governor's ability to prohibit the use of helicopters to be overridden. CHAIR SEEKINS said it is not; methods and means are statutorily assigned to the Board of Game. The language in Section 2 is a reiteration of a truism that already exists in the statutes. The Board of Game could do that now for private individuals or for permittees. It cannot compel ADF&G to use helicopters, gun ships and gunners. It does not change that separation of power. Section (a) of the original statute says the Board of Game can do these things; section (b) says ADF&G can do these things so it does not touch any of the department's authority. SENATOR ELLIS asked if the Governor had the authority to tell the board that helicopters could not be used. CHAIR SEEKINS said, as he understood the Governor's conversation with the board, the Governor said no state helicopters and no ADF&G gunners could be used. He asked a representative from ADF&G to elaborate. MR. MATT ROBUS, Division of Wildlife Conservation, ADF&G, told members he attended the March Board of Game meeting and participated in the process as the board came forward with its findings and request to the commissioner. He asked for clarification of the chair's question. CHAIR SEEKINS asked, "Does this, in any way, trump the Governor's statement that he is not going to use helicopters and gunners?" MR. ROBUS said his understanding, based on discussions with the Department of Law (DOL) and the committee, is that the commissioner still retains the authority to decide what ADF&G will or will not implement. CHAIR SEEKINS said he understands the Governor to mean that his desire is that the methods and means employed by public people to be at the authorization of the Board of Game, not ADF&G. SENATOR ELLIS asked if by "public people," Chair Seekins means members of the public. CHAIR SEEKINS said he means private individuals, not public officials. If someone was going to carry out an aerial shooting in a predator control program, the Board of Game would authorize those private individuals to do so, but it could not compel the state to do so. SENATOR ELLIS asked why Section 2 is necessary if it doesn't change the status quo. CHAIR SEEKINS said it is a reiteration of the existing statutes. It is somewhat unnecessary, but is meant to clarify. He asked Mr. Robus if he agrees. MR. ROBUS said he only had a few minutes to review the working document. He appreciates the change at the beginning of the bill because that is a better way to state the committee's intent. He said he also appreciates the re-inclusion of wolverine because of their vulnerability to same-day airborne hunting. In Section 2, he expressed concern that it still potentially sets up a confrontational situation in that ADF&G believes the board already has those powers. If the board develops a particularly narrow program, it would give the administration very little flexibility in determining whether ADF&G will participate. CHAIR SEEKINS said his intent is to work with the chair of the Senate Resources Committee and members of the department to define that there is no way the board can force the department to participate. At the same time, there should be no way for the department to make it more difficult for the board to carry out its program. SENATOR OGAN commented, "This is kind of like the secretary who will disavow any of your actions if you're caught kind of thing." CHAIR SEEKINS said it is not the intent of this bill to force the board to do anything. If ADF&G does not do it, the Legislature can address the department's budget. However, there is a separation of powers in the Administrative Code. He does not want to cross that line. At the same time, he wants to make sure the administration does not have the ability to negate the efforts of the Board of Game to carry out its program. SENATOR OGAN pointed out that with regard to the separation of powers issue, the Board of Game is almost an extension of the legislative branch because the Legislature delegates its authority to the board. CHAIR SEEKINS maintained that the Legislature, as trustee of the resource, has delegated certain authority to the Board of Game. The board should be working cooperatively with ADF&G. The Legislature might anticipate that ADF&G would assist to some degree and provide administrative support if the Board of Game authorized an airborne hunting program. He expressed concern that the board should not be able to issue an order that says that those who are authorized to participate in this program are members of ADF&G and they must use helicopters. MR. ROBUS agreed that reflects one of ADF&G's major concerns. CHAIR SEEKINS said, in effect, the board will still be allowed to make that decision but ADF&G would not be forced to be part of the program except for administrative participation. SENATOR OGAN asked Mr. Robus if he envisions that ADF&G will give biological advice to the board, but ADF&G employees would not fly in planes and shoot. MR. ROBUS said version S requires ADF&G to present the information upon which this program is based, so ADF&G would be involved there. As the board recognized in the finding for Unit 19D in March, predator management issues can be addressed in different ways. Some involve department participation while some do not. Version S seems to allow the board to come out with a very narrow program, in terms of saying exactly how it could be done, and there may be times when that conflicts with the administration's desires. That's the conversation he had [with the chair] about where the board's authority to direct ADF&G or recommend to ADF&G intersects with the department's authority to participate or not participate. CHAIR SEEKINS added: And the accompanying concern that the department doesn't say, well, you have to get a permit to be able to do this and the permits are in Barrow and the hunt is in McGrath. There's some responsibility on all parts there to be cooperative but yet not to cross the lines of individual powers. SENATOR OGAN asked if anything in current state law prevents a predator control program that involves use of helicopters to identify dens or areas where predators center. He said he has spoken with a professional predator regulator for the federal government who suggested using helicopters for such a purpose. MR. ROBUS said the general answer is no and unless the person is carrying a collection permit or some sort of authorization, the person can not harass or even disturb an animal because that would fit the definition of "taking." An ADF&G employee doing a survey with a permit is legal. If a private person does that, the person could cross the line from observation to disturbance, which becomes a legal problem. SENATOR OGAN asked if anything prevents ADF&G staff from getting permits, locating dens, and then using helicopters to drop people off to hunt the next day. He said he is looking for alternatives. MR. ROBUS said if hunting is involved, helicopters cannot be used to transport hunters or their gear or game. If the activity is something other than hunting, possibly an approved predation control program, something like that could occur. SENATOR THERRIAULT asked if under the existing statute, individual Alaskans could participate in a predator control program that includes same-day airborne or shooting from planes. MR. ROBUS said that is correct according to his discussions with the Department of Law. CHAIR SEEKINS said version S says the board can use more than just the prey population objective to be able to do that. The board can also use harvest or population objectives for prey or predator in an area determined to be an intensive management area. SENATOR THERRIAULT said the bill now contains language that says the board will assert control over how that is to be done. He maintains that this legislation will not undo the public initiative. CHAIR SEEKINS agreed and said it clarifies how it can be used. He noted that, hopefully, Section 2 brings some portions of existing statute into focus so that the state isn't turning everybody with a Super Cub and a shotgun lose to kill wolves. SENATOR ELLIS asked about the term "free ranging wolf." CHAIR SEEKINS said that free ranging means it is not trapped or confined somehow. MR. ROBUS acknowledged that is correct. SENATOR ELLIS asked Mr. Robus if he supports the inclusion of wolves and wolverines on the list and whether they are included because those two species are killing moose calves. MR. ROBUS said he does not want to give the impression that bears are not involved in some areas. He commented favorably about including wolverines in version S because they were removed from the previous committee substitute. Staff pointed out to him that wolverine, being solitary, having a low reproductive rate and using open country, could be very vulnerable to same day airborne land and shoot practices. Because the first sentence of this statute says certain species may not be hunted, it makes sense to include wolverine. He said the fact that wolves are included is due to the initiative that originally established the statute. However, everything else in the bill says in a predation control situation, wolves may be taken in specific ways. He pointed out that lynx are not often found in country where they would be susceptible to same day airborne shooting and fox have a higher reproductive rate. CHAIR SEEKINS said he would be hard pressed to find any advantage in using same day airborne hunting to get a fox or lynx. However, wolverines could be more susceptible. SENATOR ELLIS asked, "And what's your take on the bears?" CHAIR SEEKINS said they are covered under different statutes. SENATOR ELLIS asked if he intends to address that statute. CHAIR SEEKINS said he intends to look at it at some point and is currently talking to members of the trapping, hunting and guiding industries and ADF&G about how to control bears. SENATOR ELLIS asked if bears are on the list. CHAIR SEEKINS said he thinks they should be, but not in all areas. SENATOR FRENCH said most of his constituents think that any airborne wolf hunting is banned. The tenor of their comments is that they want this to be as tightly regulated as possible. They do not want one inch of leeway to make it easier to do predator control from the air or using same day land and shoot. He said from a political perspective, he sees the Governor saying that he will not allow department staff to participate in predator control using helicopters, but what he sees coming is the least attractive alternative to his constituents. TAPE 03-25, SIDE A 2:43 p.m. CHAIR SEEKINS said Senator French's comment shows a widening of the rural-urban split. He said that people from downtown Anchorage and those from a rural community will be at odds on this issue. If Senator French's constituents want to widen the rural-urban split, this issue provides an opportunity to do so. He said that members of Senator French's party are supportive of this legislation because they are unable to put moose on their tables because of predators. If people in downtown Anchorage do not believe that is a real problem, they should talk to some of those folks in the rural areas. He said the rural populations of moose have declined and, because of ineffective predator control in some areas close to urban populations, urban hunters are hunting in the rural areas. He pointed out that the moose population in Unit 13 has dropped from 27,000 to less than 8,000. The wolf populations are huge in that area. As a result, urban hunters who used to hunt in Unit 13 are now going to the rural areas. That is exacerbating the urban rural tension. They would not travel to rural areas if they had a reasonable opportunity to harvest close to home. The Governor said he wants the local people to take care of predator control rather than ADF&G employees. This bill will authorize local people to do what the Governor wants to have done; it does not set up an adverse position to the Governor's. It allows the Board of Game to make that decision in concert with the Governor's desired methods. SENATOR THERRIAULT told Senator French this bill is a step in the direction that his constituents want to go. They think airborne hunting is absolutely outlawed: it is not. They believe this legislation undoes the initiative: it does not. Legislators have to educate them. He directed the woman he corresponded with to the sections of statute to show her that this will put some controls on a process she says she does not like. He questioned whether she would rather have no controls. Constituents need to understand this is a step in the right direction. SENATOR FRENCH said it strikes him that if the issue is the declining moose population criteria already exists in the current statute. The first go around on this issue centered on increasing the number of variables the board could contemplate when considering airborne predator control. He said the real issue is that the Board of Game did not set the population figures appropriately. It was suggested that the moose population could be maintained at a low level but, because of the rise in the predator population, it would crash. He said he was not convinced of that because he believes the game population must be set with a large enough buffer to take predation into account. He questioned how this bill would change that. CHAIR SEEKINS replied: ...you may have a population objective in a particular area and you're maintaining that population objective but, because of predation, you have no harvest objective that you can look for in being able to maintain that population objective. So you're cutting back on the size that can be taken. You're removing non-resident hunters from the equation. You're doing other things that can help you maintain the population objective but you now are not able to meet a harvest objective. So this would give you the opportunity to eliminate the competition to be able to meet a harvest objective. Am I correct there? MR. ROBUS said another way to say it is that, under the current system, the board has only one trip wire that enables it to set up a predation control program - that is if an ungulate population identified for intensive management descends through its population objective. If an ungulate population is above its population objective, but for various reasons is in a downward trajectory, this flexibility to choose several objectives from which to work should allow the board to take some corrective measure to try to recover the population to the lower limit. He said it is important that this is only tied to intensive management populations of ungulates that have been identified as very important for high levels of human use. He said the March meeting of the board demonstrated that, when decisions must be based on a single objective, wildlife management gets very complicated. Giving the board flexibility to look at other objectives makes sense because other factors affect those ungulate populations. SENATOR OGAN commented that he hunted moose in Unit 13 for a number of years, but he quit 10 years ago because the herd he was hunting had 20 to 30 cows and not one calf. He could tell back then that the population was in trouble. SENATOR THERRIAULT moved CSSB 155(JUD) from committee with individual recommendations and the attached zero fiscal note. SENATOR ELLIS objected. CHAIR SEEKINS called for a roll call vote. The motion to move the bill from committee passed with Senators Therriault, Ogan and Seekins voting in favor, and Senators French and Ellis opposed.