Legislature(1999 - 2000)
05/03/1999 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
May 3, 1999
1:15 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Jeannette James
COMMITTEE CALENDAR
* HOUSE BILL NO. 212
"An Act relating to unlawful trade practices and antitrust
activities."
- MOVED HB 212 OUT OF COMMITTEE
OVERVIEW: APPORTIONMENT PRESENTATION BY MARSHALL L. TURNER FROM
THE BUREAU OF THE CENSUS
SENATE BILL NO. 74
"An Act relating to hunting on the same day airborne."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 212
SHORT TITLE: UNLAWFUL TRADE PRACTICES/ANTITRUST
SPONSOR(S): JUDICIARY
Jrn-Date Jrn-Page Action
4/26/99 1005 (H) READ THE FIRST TIME - REFERRAL(S)
4/26/99 1005 (H) JUD
5/03/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 74
SHORT TITLE: SAME DAY AIRBORNE HUNTING
SPONSOR(S): SENATOR(S) KELLY PETE
Jrn-Date Jrn-Page Action
2/17/99 270 (S) READ THE FIRST TIME - REFERRAL(S)
2/17/99 270 (S) RES
2/24/99 (S) RES AT 3:00 PM BUTROVICH ROOM 205
2/24/99 (S) MOVED OUT OF COMMITTEE
2/24/99 (S) MINUTE(RES)
2/25/99 (S) RLS AT 11:30 AM FAHRENKAMP RM 203
2/25/99 (S) MINUTE(RLS)
2/25/99 363 (S) RES RPT 6DP
2/25/99 363 (S) DP: HALFORD, TAYLOR, PARNELL, PETE
KELLY
2/25/99 363 (S) MACKIE, GREEN
2/25/99 363 (S) ZERO FISCAL NOTE (F&G)
3/04/99 407 (S) RULES TO CALENDAR AND 1 OR 3/4/99
3/04/99 409 (S) READ THE SECOND TIME
3/04/99 409 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/04/99 409 (S) READ THE THIRD TIME SB 74
3/04/99 410 (S) PASSED Y14 N6
3/04/99 410 (S) ELLIS NOTICE OF RECONSIDERATION
3/05/99 426 (S) RECONSIDERATION NOT TAKEN UP
3/05/99 427 (S) TRANSMITTED TO (H)
3/08/99 386 (H) READ THE FIRST TIME - REFERRAL(S)
3/08/99 386 (H) RESOURCES, JUDICIARY
3/17/99 (H) RES AT 1:00 PM CAPITOL 124
3/17/99 (H) HEARD AND HELD
3/17/99 (H) MINUTE(RES)
4/07/99 (H) RES AT 1:00 PM CAPITOL 124
4/07/99 (H) MOVED OUT OF COMMITTEE
4/07/99 (H) MINUTE(RES)
4/08/99 688 (H) RES RPT 6DP 1NR
4/08/99 688 (H) DP: OGAN, SANDERS, HARRIS, BARNES,
4/08/99 688 (H) MORGAN, WHITAKER; NR: KAPSNER
4/08/99 688 (H) SENATE ZERO FISCAL NOTE (F&G) 2/25/99
4/08/99 688 (H) REFERRED TO JUD
5/03/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on behalf of the House Judiciary
Standing Committee, sponsor of HB 212.
DAVEED SCHWARTZ, Assistant Attorney General
Commercial Section
Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Provided information and answered questions
regarding HB 212.
MARSHALL L. TURNER, Chief Redistricting Data Officer
Bureau of the Census
U.S. Department Of Commerce
Address not provided
Telephone: (Not provided)
POSITION STATEMENT: Discussed the year 2000 census.
SENATOR PETE KELLY
Alaska State Legislature
Capitol Building, Room 510
Juneau, Alaska 99801
Telephone: (907) 465-5241
POSITION STATEMENT: Sponsor of SB 74.
ED DAVIS
P.O. Box 71616
Fairbanks, Alaska 99707
Telephone: (907) 479-7263
POSITION STATEMENT: Testified on SB 74.
WAYNE REGELIN, Director
Division of Wildlife Conservation
Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4190
POSITION STATEMENT: Testified on SB 74.
HAYDEN KAYDEN
P.O. Box 26
Gustavus, Alaska 99826
Telephone: (907) 697-2309
POSITION STATEMENT: Testified in opposition to SB 74.
DICK BISHOP, Vice President
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99701
Telephone: (907)463-3830
POSITION STATEMENT: Testified in support of SB 74.
STEVE PERKINS
P.O. Box 5046
Koliganek, Alaska 99576
Telephone: (907) 596-3478
POSITION STATEMENT: Testified on SB 74.
JOEL BENNETT
Wolf Management Reform Coalition
15255 Point Louisa Road
Juneau, Alaska 99801
Telephone: (907) 789-1718
POSITION STATEMENT: Testified on SB 74.
RICHARD WALLEN
Wolf Management Reform Coalition
2940 Douglas Highway
Douglas, Alaska 99824
Telephone: (907) 586-6517
POSITION STATEMENT: Testified on SB 74.
AMY SKILLBRED
4477 Abby Way
Juneau, Alaska 99801
Telephone: (907) 780-4649
POSITION STATEMENT: Testified on SB 74.
DOUGLAS POPE
421 West 1st Avenue, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 272-2021
POSITION STATEMENT: Testified on SB 74.
TONY UTT
P.O. Box 5446
Wasilla, Alaska 99654
Telephone: (NotProvided)
POSITION STATEMENT: Testified in opposition to SB 74.
DAVE KELLYHOUSE
P.O. Box 478
Tok, Alaska 99780
Telephone: (907) 883-5384
POSITION STATEMENT: Testified in support of SB 74.
ACTION NARRATIVE
TAPE 99-48, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:15 p.m. Members present at the call to order
were Representatives Kott, Green, Murkowski, Croft and Kerttula.
Representative Rokeberg arrived at 1:19 p.m.
HB 212 - UNLAWFUL TRADE PRACTICES/ANTITRUST
CHAIRMAN KOTT announced the first order of business is House Bill
No. 212, "An Act relating to unlawful trade practices and antitrust
activities."
Number 0085
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, came before the committee and presented the bill. He stated
that the litigation surrounding antitrust and unfair trade
practices, as well as the Consumer Protection Act are long, and
often arduous matters, which result in a high amount of discretion
and sensitivity. This bill would reinforce the confidential nature
of such a case by prohibiting certain public disclosures during,
and even after, an investigation.
MR. WINCHELL offered a sectional analysis of HB 212. Section 1
amends the confidentiality section of the state's Unfair Trade
Practices Act. It prohibits the attorney general from making the
names of persons alleged to have committed unlawful trade practices
public during and after an investigation. This section also adds
investigation records and intelligence information of the attorney
general that are created in the course of an investigation and the
work product by exempting it out of public disclosure. Section 2
adds a new section on articles of monopoly and restraints of trade.
The article provides that investigation records obtained or created
by the attorney general during an investigation are not considered
public records before or after an investigation. He stated that it
does allow and provide for the attorney general to issue public
statements warning the public about the present or future
violations of the article, however. The intent is to exempt highly
critical and complex statements from public disclosure during an
antitrust lawsuit.
REPRESENTATIVE KOTT stated, according to his understanding, that is
how it was done until there was a court decision reversing the
ways.
Number 0253
REPRESENTATIVE MURKOWSKI asked Mr. Winchell what precipitated this
legislation.
MR. WINCHELL deferred the question to Mr. Daveed Schwartz from the
Department of Law.
DAVEED SCHWARTZ, Assistant Attorney General, Commercial Section,
Department of Law, testified via teleconference from Anchorage. He
specializes in antitrust and consumer protection cases. The
content of HB 212 was incorporated in HB 142 from a prior
legislative session. It was precipitated by concerns expressed by
the seafood processing industry regarding the confidentiality of
state antitrust records after an investigation was concluded. This
issue also came before the Alaska Superior Court surrounding salmon
litigation in relation to price fixing in 1996. A superior court
judge ordered the state attorney general's office to release all of
the investigative information in the state's closed investigative
file, and treated it as if it were public information.
MR. SCHWARTZ explained that there are certain problems posed by
treating investigative information as public information. He said,
"During the investigation, it impedes the state's progress toward
an effective result, and then, afterwards, if the companies that
are cooperating with the state know that, after an investigation is
closed, which could be a month after it starts or several years
after it starts, the companies would be less willing to cooperated
during the investigative stage or reticent in their statements to
the attorney general's office knowing that the information could
become a matter of public record."
MR. SCHWARTZ stated that Section 1 relates to the Consumer
Protection Act and records thereof. Currently, those records,
during an investigation, are not available to the general public.
He said the change ensures that records collected during the
investigation will not be public even after the investigation is
concluded.
MR. SCHWARTZ further stated that Section 2 corrects an error in the
antitrust statute. The statute currently says that information
obtained under antitrust civil investigative demands in the form of
documentary evidence is confidential and cannot be released unless
ordered by a court for good cause. The same confidentiality
restrictions apply to testimony obtained under a civil
investigative demand. But for some reason he believes that is an
oversight. The statute does not provide for the same level of
confidentiality for testimony as it does for documentary material.
MR. SCHWARTZ further stated that Section 3 harmonizes the antitrust
statute with the consumer protection statute. He said, "Often
times, we're proceeding under both antitrust and consumer
protection statutes. Sometimes we proceed only under the antitrust
statute and we want to make sure that the records of investigation
are not considered public records during or after an investigation.
However, like the Consumer Protection Act, the attorney general
would have the power to issue public statements describing
(indisc.) course of conduct or conspiracy that would constitute a
violation of the antitrust laws."
Number 0614
REPRESENTATIVE GREEN commented that Mr. Schwartz is undoubtedly
aware of the ongoing concern of the state regarding the merger
between Exxon [Arco] and BP. He asked, "What is your feeling if,
on one hand, we say, 'Sure. We can understand that there's going
to be proprietary information that the certain individuals within
the state might be privy to, but not the public.' ... What do you
see the dichotomy here, if any?"
MR. SCHWARTZ replied that, under the current wording of the
antitrust laws, documentary material collected pursuant to a civil
investigative demand is confidential and cannot be released unless
ordered by a court [AS 45.50.592 (e)]. He is a member of the
BP-Arco Merger Task Force in the executive branch. He explained
that any information they collect, either from the Federal Trade
Commission or from the merging parties themselves or from third
parties, in the form of documentary material will be confidential
under the present wording of the antitrust laws. The antitrust
laws are interpreted as allowing the state to issue public
statements concerning investigations even now, and Section 3 will
simply clarify that current interpretation.
Number 0762
REPRESENTATIVE KERTTULA asked: "If you had a request for the
information and it was being created in the course of the
investigation, and you're anticipating litigation, isn't that
already going to be covered by work product? I mean, you're not
going to be able to release that information anyway."
MR. SCHWARTZ replied that is true. He explained if there is a
request for information during an investigation, then it would be
treated as not available under the Public Records Act. He said:
More often, what happens is we open up a case and close
it rather quickly, and, then, for some reason, whether by
interest of a news reporter or a competitor of a company
that we've looked into or a consumer group, wants to get
at our closed files. ... Our interest in protecting the
confidentiality of closed files has been interpreted by
courts in other states and nationally as being less than
if we had an ongoing investigation. So, we have less
protection of confidentiality of closed files than we do
current investigations. And this law would enhance our
ability to protect the identity of companies being
investigated or records collector (indisc.) created that
may cause some unnecessary embarrassment or public
spotlight and infringe on the ability of, or interest of,
companies to cooperate with the state in its
investigation.
Number 0874
REPRESENTATIVE KERTTULA asked what the case is that Mr. Schwartz
explained.
MR. SCHWARTZ replied in 1991 the state started an investigation of
possible antitrust violations in the seafood processing industry,
and in 1993 wrote a 41-page report detailing information uncovered
during that investigation. The state said they did not have the
resources to pursue the investigation, so the case file was closed.
Thereafter, some plaintiffs became interested in bringing another
lawsuit against seafood processors, and requested access to the
closed files, which was denied by the state. A lawsuit was then
filed against the state for failing to release the information
under the Consumer Protection Act and Public Records Act. The
superior court judge involved found that the state was required to
release their closed investigative files to the plaintiffs. The
state appealed to the Alaska Supreme Court. During the appeal
process, the state worked out a settlement with the seafood
processor plaintiffs where they could get the information in their
litigation, but keep it confidential under the terms of a
protective order.
REPRESENTATIVE CROFT asked Mr. Schwartz for a copy of the decision
allowing the release of those documents.
MR. SCHWARTZ commented he would provide a copy to Representative
Croft, but the order itself is unremarkable and it does not cite
any cases.
REPRESENTATIVE CROFT wanted to know why antitrust would be kept
confidential.
Number 1081
MR. SCHWARTZ stated it is highly unusual in Alaska to apply the
antitrust laws to examine a merger. More often the state has
initiated an investigation of alleged price fixing, bid rigging,
monopolization, territorial restraints or other non-merger matters.
The reason to keep that information confidential during an
investigation is not to impede the progress of the investigation
and to encourage cooperation of the parties. To keep it
confidential after the investigation is to encourage the
cooperation of the parties not to release potentially embarrassing
information that would not have been made public anyway. He stated
that, with respect to merger information, the usual result with
infrequent merger examinations is to file a consent judgement with
the court detailing the facts of the case and moving forward with
the merging party to seek court approval under the antitrust laws.
Where a merger is challenged or approved, either way, there is
going to be a public release of the information in the form of a
court filing. He said no one will be left in the dark in terms of
merger enforcement matters.
REPRESENTATIVE CROFT replied that he was left in the dark. He
mentioned the example of the Safeway-Carrs merger in which there
was a consent decree discussing some elements of it. He said, "By
then, it's already an agreement between the AG's [attorney
general's] office and the affected, in that case, grocery interest.
And it was virtually impossible for me to make an evaluation of the
merits of that decision. I essentially had to trust - do trust -
the AG's office, but had to trust them and Safeway and Carrs that
it had come to the right public policy decision. And it seems to
me that there may be a good argument during an investigation
because you don't know whether these allegations are correct or
not, and you don't want to have them splashed on the front page
until you make a decision, but after you have reached some
determination-there was merit to it, there wasn't, this is
appropriate or it's inappropriate-why wouldn't that be the time to
involve the public; shield them when there's just an allegation
that you haven't had a chance to look at, but why, instead of this,
shouldn't we say after an investigation everything becomes public?"
Number 1248
MR. SCHWARTZ replied if companies know going into an investigation
that, as soon as the attorney general's office is ready to close
its file, all the information that they have submitted in
confidence would become public, then they would be less willing to
cooperate. They would probably move for a protective order, and
would either have to litigate the terms of the protective order or
a breech of it. If a protective order is agreed to then it would
be a court ordered confidentiality that would continue on through
after an investigation was closed. If it had to be litigated, it
would take up a lot of resources every time an antitrust
investigation was conducted and a subpoena was issued; protective
orders would have to be litigated. As a practical matter, making
the files available after an investigation is closed could also
impede the progress and effectiveness of antitrust investigation.
REPRESENTATIVE CROFT stated he understands why it would be more
efficient for the attorney general's office and more convenient for
the parties. He said, "I guess, I don't yet understand why it's
better public policy that that isn't, ... (indisc.) never
understand why they would want to keep it confidential, but it
seems to me the public might have something to say on it, too."
REPRESENTATIVE CROFT further said that, on unlawful trade
practices, a great job is done enforcing the consumer protection
laws. He indicated that it has been a frustration of the
complaining party in a consumer protection action that there is
very little they can do to get the status of the case. It seems to
him appropriate maybe only under the "5521 Section A (indisc.)" to
say, "Except that the AG may tell the complaining party - the
person who said, 'I got swindled by this company.' Maybe able to
at least keep them informed about the status of the case." He
asked Mr. Schwartz whether this would be the appropriate section to
put something like that.
MR. SCHWARTZ replied he does not see that either the current
wording of the Consumer Protection Act (521 b (indisc.)) or the
proposed wording in HB 212 as an obstacle to doing what
Representative Croft just said. If the complaining party wants to
know what the status is of an investigation of their own complaint,
there has never been constraint in terms of communicating that
information. On the other hand, if someone other than the
complaining party requests the information, it is treated as a
Public Records Act request.
Number 1429
REPRESENTATIVE CROFT wondered whether he is confused. He thinks
that there has been a couple of cases where that has been a
problem.
MR. SCHWARTZ stated, if the complainant wants to know what the
status of their complaint is, there has never been a constraint on
telling them whether their case is still under investigation or
resolved. If it is resolved, it is usually because a settlement
was agreed upon.
REPRESENTATIVE KERTTULA asked Mr. Schwartz whether confidentiality
agreements could be entered into with the parties being
investigated.
MR. SCHWARTZ replied often times there have been agreements
insisted upon by the parties. Since there is no protection of
confidentiality after an investigation is closed, the parties
submit the records on the condition that the records are returned.
MR. WINCHELL stated that one of the policy concerns of interest is
facilitating or encouraging dialogue between the parties in a
claim. There are a lot of proprietary concerns over certain
numbers as well.
Number 1594
REPRESENTATIVE ROKEBERG made a motion to move HB 212 from the
committee with individual recommendations and the attached zero
fiscal note(s).
REPRESENTATIVE CROFT objected. This is an area where there are
legitimate confidentiality concerns, but there are also significant
public disclosure concerns not completely addressed to his
satisfaction. He believes the time to keep it confidential is in
an investigation, but he thinks care needs to be taken to report
back to the public with some fullness of what was done, what was
found, and why one thing or another was decided to be done. He
said he has seen the product that results from these antitrust
discussions. He does not feel the consent decree told him enough
as a private person in terms of whether the merger was a good idea
or a bad idea. Even with executive sessions that he has sat in on,
where he got more information, he was not satisfied with the level
of information.
REPRESENTATIVE CROFT further stated that he thinks a balance needs
to be drawn closer to public evaluation. Every step done on
confidentiality may make it easier to settle a case and easier on
the parties to make a disclosure. In that regard, there is the
potential to undermine the confidence of the public in terms of
whether the decisions made were good. He thinks what should be
done is to err on the side of telling what was done, what was
found, and why it was appropriate. He referred to the
Safeway-Carrs issue and stated, "I have never gotten, despite
repeated requests, just some blanket indication of what the merger
situation was. That is, the number that approximates how
monopolistic a grocery industry is before and after the merger.
Even that level, this number that tells you how fractured or
monopolistic a market is, which wouldn't tell me how much Safeway
had or Carrs had or Fred Meyer's had, but simply the level of
monopolization. They said that was too critical, too confidential.
So, I can't even say, at this point, that it decreased or increased
the level of monopolization or to what level. And I don't know
that, even in executive session. My constituents don't know it,
and I think that does them a disservice. I don't criticize the
Judiciary Committee for putting this forward. I think it probably
was the original intent of the statute, but I think we need to
balance that statute in the other direction."
Number 1748
REPRESENTATIVE MURKOWSKI said she appreciates the fact that the
consent decrees may be less than sufficient and that additional
information ought to be made available so that whether it has been
in the public's best interest can be truly determined. On the
other hand, she is very sensitive to the chilling effect that the
release of certain information would have on the parties. She
indicated that if she were one of the parties and knew that the
information was going to be made available to the public at the
conclusion of an investigation, she would be less than forthcoming.
It needs to be ensured that those people reviewing the information
have absolute full disclosure. She thinks, perhaps, the consent
decrees do not go far enough, but a certain level of
confidentiality has to be allowed for.
Number 1810
REPRESENTATIVE KERTTULA commented that this is one of those great
balancing questions between the public's right to know and the
parties' right to negotiate and come to a conclusion. The state's
policy is very strong in regards to public records and making them
available. She stated that there are many ways that records can be
held confidential. Some records are created in the anticipation of
litigation, and they are going to be confidential anyway under the
current court rules. She said if Mr. Schwartz is right, and this
is the way that he reads the law right at the moment, then she is
a little bit concerned about trying to do something that might
conceivably make records be held confidential when it was not
wanted for them to be. She thinks that there are already a lot of
protections in place and she would not go this far.
REPRESENTATIVE GREEN stated that he also has some concerns. He is
somewhat reassured that what is being talked about is the attorney
general and not the legislature. On occasion, the legislature has
had to go into executive session to get information that was very
sensitive. He is really torn between what has been discussed
before about the public's right to know, but he also balances that
as a "member of a cooperative electorate." He explained that there
was an executive session almost weekly when he was on the board of
directors of Chugach Electric Association Incorporated. It was so
common that it was actually an agenda item that was always there,
and the public never really scrutinized it. That does not mean,
however, that the public did not want to know. He is concerned
that if "we were to bind ourselves with something like this with
confidential nature, and inadvertently allowed it (indisc.) that
then create any litigation potential from an injured party." He
stated that since, the way he reads it, they are really talking
about the attorney general's office; he agrees with moving the bill
from the committee but with reservation.
Number 1933
CHAIRMAN KOTT said he appreciates the concerns of Representatives
Croft and Green. If he were an entrepreneur dealing with the
attorney general, he would probably do as much as he could to not
provide every bit of information that was requested just to stymie
that investigation knowing that everything would be released.
REPRESENTATIVE ROKEBERG said he is concerned also, but only in the
sense that he is waiting for an answer from the attorney general's
office as to why they lied to him about participating in the
Safeway-Carrs merger. He has not received a response and finds
himself in agreement with Representative Croft regarding the
forthrightness of the Attorney General and his ability to respond.
He said, "On the other hand, I find that (indisc.) proprietary
information ... what to me is the complete constructive divesture
of Safeway's interest in the state of Alaska to allow them to buy
Carrs is kind of--I guess they, they divested themselves of enough
... of their property so they won't have a monopoly--I find that on
the face kind of obvious. With that, I'll vote yes on the bill."
CHAIRMAN KOTT said, in defense of the attorney general's office,
they have probably been slow in getting a response to
Representative Rokeberg because they are working on so many of
these ongoing investigations and trying to get the parties to
provide all the information.
REPRESENTATIVE ROKEBERG commented that was last October.
CHAIRMAN KOTT asked whether Representative Croft still had an
objection.
Number 2038
REPRESENTATIVE CROFT withdrew his objection.
CHAIRMAN KOTT asked whether there is any further objection. There
being none, HB 212 was so moved from the House Judiciary Standing
Committee.
OVERVIEW: APPORTIONMENT PRESENTATION BY MARSHALL L. TURNER FROM
THE BUREAU OF THE CENSUS
CHAIRMAN KOTT announced the next order of business is an overview
by Mr. Marshall L. Turner from the Bureau of the Census.
Number 2080
MARSHALL L. TURNER, Chief Redistricting Data Officer, Bureau of the
Census, U.S. Department Of Commerce, came before the committee and
gave a brief overview of the year 2000 census. He stated as part
of a means to correct the undercount in 1990, the bureau has opened
50 local offices throughout the country in an effort to go to as
many homes as possible. There will also be a quality control check
to determine how many people have been missed or how many people
have been counted twice before the legal deadline of December 31,
2000 - the deadline to get the numbers to the president of the
United States.
MR. MARSHALL further mentioned in Alaska there will be special
efforts to enumerate the military by allowing them to be enumerated
on base or off base. In addition, the military personnel who are
overseas will be counted based on their home of record on file,
which could read "Alaska." They will be included in the set of
data that will be used for apportionment.
MR. MARSHALL further mentioned that Alaska was undercounted in 1990
by about 11,000, according to a follow-up survey. But the
secretary of the U.S. Department of Commerce at the time decided
not to use the new data as an official undercount correction. He
noted that the sampling used for the quality control check for the
year 2000 census will be more robust - stronger in its validity -
because it will use a 300,000 household sample as compared to a
150,000 household sample used the last time. It is important
because $180 billion in federal funds per annum go back to the
state of Alaska and its communities. He noted that 50 percent of
the undercount in 1990 was in rural areas as the result of not
being able to find a housing unit. That is being corrected through
a program called L.U.C.A. [Local Updated Census Addresses] in which
all the mayors, tribal officials, and county officials have been
invited to review lists of addresses for accuracy. The bureau is
confident that program will help build a better base to start with.
He further mentioned that there will be another opportunity,
starting in January of 2000 through census day, for officials to
notify the bureau of any new housing units to allow for time to go
back and count those units that are occupied.
MR. MARSHALL further mentioned, as the result of complaints from
parents of children from mixed races, that there will be more than
one race category to choose from that will be reflected in the
numbers distributed to the states.
MR. MARSHALL further mentioned that in April of 2001 the data will
be sent to the governors, minority and majority leaders, and
commissions of each state simultaneously, so that everybody will
have the same information at the same time.
TAPE 99-48, SIDE B
Number 0001
SB 74 - SAME DAY AIRBORNE HUNTING
CHAIR KOTT announced the next order of business is Senate Bill No.
74, "An Act relating to hunting on the same day airborne."
Number 0671
SENATOR PETE KELLY, Alaska State Legislature, came before the
committee as sponsor of the bill. He stated that there was an
initiative in 1996 to ban same-day land-and-shoot for predators
including wolves. The people of Alaska supported the initiative,
but, unfortunately, the law fell victim to the public not knowing
what they were voting on. The advertising campaign surrounding the
initiative depicted it as aerial hunting of wolves. Of course,
that was illegal and remains illegal to this day. He indicated
that the initiative was also sold as a vehicle to preserve the
principles of fair chase in sportsmanship. He feels that nothing
should be done to violate these principles in the statutes.
SENATOR PETE KELLY further stated that the problem with the
initiative and what is intended to be cleared up in SB 74 is the
ambiguous language. It was language that many people believed was
calling for a lawsuit, and because of that, it ties the hands of
the fish and game managers, the department, and the Board of Game
in actually carrying out any kind of aerial management. He
provided an example of the ambiguous language referring to the
mention of "feasible alternative" saying that an airborne wolf
management plan could not be initiated if there were feasible
alternatives. The language is too broad because many alternatives
may exist, but they may not be technologically or financially
possible. They may not be effective, but they may be feasible. It
requires that the commissioner only instigate airborne means to
manage wolves and other predators based on a finding and having
adequate data - adequate data is something that could obviously be
challenged. There is also reference to an irreversible decline,
which states that airborne management cannot be carried out unless
there is an irreversible decline. He explained that many of the
professionals that he knows in the industry say that there can
never be an irreversible decline because it is the nature of a herd
to drop from its baseline at 100 percent all the way down to 2
percent and then to rebound to 5 or 10 percent. But that is not an
irreversible decline because there is a slight rebound. He
reiterated that SB 74 puts management in the hands of the
department and the Board of Game, which is where it belongs. He
does not believe that the people of Alaska want aerial hunting of
wolves, but it will allow the professionals within the department
and the Board of Game to carry out airborne management of predators
based on a plan that they have deemed fit in accordance with their
professional background and experience.
Number 0972
REPRESENTATIVE MURKOWSKI stated that her office has received more
POMs [Public Opinion Messages] compared to any other issue that
comes to mind. In reading them, it is very apparent that the
public thinks that the bill brings back aerial wolf hunting, but
that is not the case. She asked Senator P. Kelly why he is
bringing this forward now. Is he anticipating a challenge down the
road?
Number 0963
SENATOR PETE KELLY replied a letter from the Board of Game
indicated that this has restricted its ability to implement any
kind of (indisc.).
REPRESENTATIVE MURKOWSKI said, so the board has requested it.
SENATOR PETE KELLY replied yes. He has also talked to other
professionals in the area who have indicated that their ability to
carry out wolf management is virtually impossible. There isn't
only a problem with predator-prey control but wolves themselves.
He cited there is a lice infestation now that should have been
dealt with a long time ago. But it can't be dealt with effectively
without landing and shooting thereby forcing the department to deal
with it medically, which is very expensive and is not working very
well. He noted that there are a number of other infestations or
diseases that could break out amongst the wolf populations that
would need to be dealt with before it spreads all over the country,
which cannot be done under the language of the current initiative.
SENATOR PETE KELLY further stated, in response to the number of
POMs, he doesn't know what to do about a lie. It was a lie when it
was sold as an initiative. The news reports were lies nationwide
as well. He referred to a survey from 1995, which indicates
support by a broad margin for SB 74. He cited the following
question:
"Do you agree or disagree with this statement: If a
biological emergency exists, such as a moose or caribou
population in danger of local extinction, the Department
of Fish and Game should be allowed to use airplanes to
conduct limited aerial wolf control programs?"
SENATOR PETE KELLY noted that 69 percent of the people agreed with
that statement, which is what his bill addresses. He cited the
following question:
"If Alaska had a statewide ballot initiative that said,
'No person may shoot a wolf, coyote, wolverine, fox or
lynx that same day that person is airborne. However, if
authorities conclude that a biological emergency does
exist, a same-day aerial wolf control program conducted
by Fish and Game personnel only may be authorized' - Do
you think you would vote for or against that initiative?"
SENATOR PETE KELLY noted that 63 percent of the people agreed with
that statement, but that is not the practical application of the
initiative. The initiative says, "You shall not land and shoot."
It further restricts the department and Board of Game's ability to
carry out wolf management through aerial means. The survey really
asked two different questions in two different ways, and the
results show a support for SB 74.
Number 1256
CHAIRMAN KOTT commented that the bill's title is very broad and,
when looking at it, it gives a bad feeling.
Number 1279
REPRESENTATIVE CROFT said, under current law, the Board of Game
would have to say that a biological emergency exists, while this
bill repeals that language and requirement.
SENATOR PETE KELLY replied yes. It also defines the term "game
management program" as a program authorized by the Board of Game or
the commissioner to achieve identified game management objectives
in a designated geographic area. It removes the biological
emergency definition and allows for the board to define the need
for aerial shooting.
Number 1362
REPRESENTATIVE CROFT asked Senator P. Kelly what sideboards does
the department or board have to meet. Do they have to declare a
biological emergency, for example?
SENATOR PETE KELLY replied no. The board would determine through
the public process the need to carry out wolf control in a
particular area.
REPRESENTATIVE CROFT noted that the survey says, "if a biological
emergency exists." In order to mirror the bill it should have
said, "whether or not a biological emergency exists." The answer,
however, is not known to that phrasing.
Number 1420
SENATOR PETE KELLY said it could also say, "do you think there
should not be open management of wolves and other predators, unless
the Board of Game through the public process agrees."
Number 1445
REPRESENTATIVE CROFT asked Senator P. Kelly why it is appropriate
to take out biological emergency.
SENATOR PETE KELLY deferred the question to Mr. Dick Bishop from
the Alaska Outdoor Council.
Number 1490
REPRESENTATIVE MURKOWSKI asked Senator P. Kelly who would be
allowed under the language "an employee" or "agent." She is
interested in knowing who the agents might be.
SENATOR PETE KELLY replied those decisions would be left to the
biologists within the Department of Fish and Game. Sometimes
management is done by permit or contract, which would be an agent.
REPRESENTATIVE MURKOWSKI asked Senator P. Kelly whether the
department could authorize certain permits to agents to conduct a
hunt in order to get rid of a pack of lice infected wolves.
SENATOR PETE KELLY replied yes, but he doesn't think it's likely to
happen. He just doesn't want to preclude the availability of
contractors or permits should they have to go that route.
Number 1623
ED DAVIS testified via teleconference from Fairbanks. He is an
avid and successful moose hunter. He is also a co-founder of a
group called Alaskans For Fair Chase, a group of hunters from
Fairbanks who advocate hunting ethics. His main concern is that
the bill would land the state back to the days of land-and-shoot
wolf control, which created a huge problem because the concept
doesn't work and invites violations. He is also concerned that the
bill would return the state to the days of unethical hunting. It
would allow anybody to become an agent of the state to participate
in airborne wolf control regardless of whether or not there is a
biological emergency. He thinks airborne wolf hunting undermines
the image and public respect for all hunters. He urged the
committee members to revise the bill to allow for same day airborne
wolf control only when it is biologically justified.
Number 1790
SENATOR PETE KELLY noted that the bill meets all of the objectives
mentioned by Mr. Davis.
Number 1818
REPRESENTATIVE CROFT asked Senator P. Kelly whether the survey
question - "If Alaska had a statewide ballot initiative that said,
'No person may shoot a wolf, coyote, wolverine, fox or lynx that
same day that person is airborne. However, if authorities conclude
that a biological emergency does exist, a same-day aerial wolf
control program conducted by Fish and Game personnel only may be
authorized'" - describes current law.
SENATOR PETE KELLY replied no. It doesn't describe the other
ambiguities that make it impossible. Even if a biological
emergency did exit, the department would not be able to ... because
there would be so many challenges. Was there adequate data when
the commissioner made the findings? Was it in the context of an
irreversible decline? Those kinds of questions make it impossible
for the department to conduct wolf management by aerial means.
Number 1891
REPRESENTATIVE CROFT said, so it's not so much the need of a
biological emergency as the specific terms that create the
problems.
SENATOR PETE KELLY replied yes.
Number 1933
REPRESENTATIVE KERTTULA asked Senator P. Kelly who he foresees as
agents.
SENATOR PETE KELLY replied anybody who the commissioner directs the
department to employee as an agent and who is approved by the Board
of Game. It is not about everybody shooting wolves from a Super
Cub in a state sanctioned manner, as Mr. Davis indicated in his
testimony.
Number 2017
CHAIRMAN KOTT wondered whether the commissioner could act
independent from the Board of Game. The language reads, "a program
authorized by the Board of Game 'or' the commissioner to achieve
identified game management objectives in a designated geographic
area."
Number 2132
WAYNE REGELIN, Director, Division of Wildlife Conservation,
Department of Fish and Game, came before the committee to testify
and answer questions. The bill does not alter the prohibition on
same day airborne hunting. It does not affect hunting or hunters
in any way. It does, however, change the standards for the
Department of Fish and Game to conduct wolf control. He noted the
following three things that the bill does:
1) Removes the requirement that the commissioner of fish
and game make written findings based on adequate data
demonstrating that a biological emergency exists and that
there is no feasible solution other than airborne control
to eliminate the biological emergency;
2) Deletes the definition of "biological emergency"; and
3) Authorizes the use of nondepartmental personnel as
agents.
MR. REGELIN further stated that the department recognizes that the
term "biological emergency" defined in current law is a very
difficult standard to meet because predation just doesn't drive
populations to extinctions, but it can drive them to very low
levels and hold them there. The Department of Fish and Game is
willing to work with the legislature to develop a different
definition. But it also believes that a standard should be
established in statute that must be met before wolf control is
initiated. The department cannot support this bill without such a
standard. The department also thinks that it is not wise to have
non-agency personnel conduct predator control programs under the
term "agents." A wolf control program is so controversial that it
should only be conducted by agency biologists. There is certainly
a need for nondepartmental individuals to fly helicopters or fixed
wing aircraft which are used in a predator control plan. But the
department currently has that authority as long as a departmental
person is in the aircraft. He further noted that a large segment
of the population doesn't want to see the department engage in wolf
control as a routine management action, unless there's an
emergency...
TAPE 99-49, SIDE A
Number 0001
MR. REGELIN continued. The department has standards which are used
to initiate wolf control, or recommend it to the board, but only
after three criteria have been met. First, they have to have sound
scientific data showing predation is the fundamental cause of a
decline or a continued low level. Second, they have to try to make
sure that the social and economic benefits associated with any
program are weighed and that the anticipated benefits exceed the
costs. Third, there has to be a level or indication of acceptance
among Alaskans. They have learned that if they try to do this
without proper public consultation it will fail.
MR. REGELIN further noted that regulations have been adopted by the
Board of Game relating to wolf control and that the board is in
full control of authorizing when it can be conducted. He said 5 AC
92.110 sets the standards for biological data and requires that be
presented at two public meetings, one within the area where wolf
control would be conducted. Furthermore, it sets out that it has
to be in a confined geographic area; it authorizes the number of
wolves that can be taken and the number of wolves that must be left
in the field after the control effort is completed, it also talks
about the duration. He indicated that there are additional
standards. Mr. Regelin further stated, "We feel like there's
probably wisdom in having a standard in statute but one that is not
going to result--or has a standard that just can't be met like an
irreversible decline so we would like to work with the sponsor, or
your committee ... to propose some suggested wording or standards."
Number 0239
CHAIRMAN KOTT asked Mr. Regelin whether he has any suggested
language.
MR. REGELIN replied no he doesn't, but someone else may.
CHAIRMAN KOTT asked Mr. Regelin whether Alaska currently has a
problem with wolf control; is that the purpose of this legislation?
MR. REGELIN replied he believes that SB 74 is anticipating concerns
of trying to meet the standard of an irreversible decline before
action can be taken. As controversial as this is, someone could
very likely take that standard and go to court and win because
there is no way a biologist could testify that it's going to be an
irreversible decline based. He further stated, "Having the
commissioner make a written finding that there's a big problem or
that there's an emergency, but then defines that emergency in a way
that the commissioner can use his judgement to initiate action -
you have to remember he can't do that without the Board of Game
holding two public hearings, passing a regulation and a whole lot
of data being collected." Mr. Regelin also believes that a
standard would give comfort to a lot of people and the Department
of Fish and Game wants language to make sure that it never happens.
Number 0399
CHAIRMAN KOTT referred to Sections 2 and 3 of the bill. He said,
in his opinion, the department could contract their own agent
without the board's approval. Section 3 defines game management.
In theory, there could be two game management programs for airborne
wolf hunting implemented at the same time, one by the board and one
by the commissioner.
MR. REGELIN replied he doesn't believe that is correct because the
commissioner is also obligated to follow regulations adopted by the
Board of Game, and they have adopted regulations that have full
control of authorizing wolf control.
REPRESENTATIVE KERTTULA noted that she also has a problem with the
broadness of the language in Section 3 of the bill in relation to
an identified game management objective. She asked Mr. Regelin
whether that is identified elsewhere in statute and whether that
could be identified as a game management objective of increasing
moose or other animals.
MR. REGELIN replied he doesn't know anywhere in statute where it
talks about game management objectives, but it does so in
regulations. The department has gone through the process within
the Board of Game of establishing game management objectives, which
the Department of Fish and Game has a standard process of trying to
identify the number of animals (with a lot of public input -
including the advisory committees). Mr. Regelin added the number
of animals that the department would like in the population, the
number of animals that are necessary to meet the needs of people
that harvest and other things like that. He concluded that he
doesn't read anything of real problem or substance in Section 3.
Number 0621
REPRESENTATIVE GREEN mentioned that there is wolf control on the
Canadian side. He said he doesn't know whether that was a
sterilization or an eradication program, however. He asked Mr.
Regelin how he would take care of something like that, if it
weren't for this program. Does the process of two hearings and a
finding create a time burden so that things can get "out of whack"
before the department can finally start implementing some sort of
control?
MR. REGELIN replied the department usually sees these things
developing and can get ahead of them and take action. However, at
times it might be a little frustrating when it takes up to a year
and sometimes two years before action can be initiated. He
reiterated that they have to go through the process of collecting
the necessary data and working with the public. "While it might be
frustrating to some of the field biologists, it's necessary as part
of the public process, or we'll get stopped about the time you get
started."
MR. REGELIN further pointed out that the department currently has
what they consider a wolf control project in the 40-mile area that
is based on sterilization and movement of the sub-developed wolves
that doesn't involve killing them. They are looking for ways to be
able to reduce or regulate wolf populations. He mentioned that
Canada conducted a project for three years with a small caribou
herd and was very successful, which also helped their moose heard
populations. He further explained that the Department of Fish and
Game is in their second year and has sterilized wolves twice and
just finished moving them again. This goes on in conjunction with
trapping. The concept is that the department wants to have two
wolves hold the big pack territory. Mr. Regelin concluded that
they have been successful; none of the wolf packs that have been
sterilized have reproduced, and all of them have held their
territories. As a result, the numbers have been reduced from 100
to approximately 27.
Number 0878
CHAIRMAN KOTT asked Mr. Regelin how the sterilization program is
conducted.
MR. REGELIN explained that the department goes out in late January
or February, darts the alpha male and alpha female, and conducts
vasectomies and tubal ligations. The department then goes back,
usually in mid-April and collects the young ones (usually they're
yearlings) and moves them to new locations where there's an
abundance of prey.
REPRESENTATIVE CROFT asked Mr. Regelin whether language that talks
about the authority to remove diseased or lice infested wolves
would help.
MR. REGELIN replied it would probably help because they feel that
they have the authority under statute and the regulatory authority
of the commissioner to take action for the general health of a
population. The department recently treated 27 out of 27 infected
wolves in Palmer and they didn't shoot them - they were captured,
which is a little more expensive. He emphasized that it's still an
experiment and they don't know whether they were successful because
loner wolves can reinfect the pack and the department won't know
that until probably next winter. But that doesn't have anything to
do with an agent. If the department is going to dart animals, they
would have to do it themselves and licensed veterinarians would
handle the drugs. He said, "The agent part is probably the idea
that you could contract with certain people that live out in remote
areas to say, to shoot under a permit from the department, 'x'
number of wolves in this area, and the reason it's there, it's
language right out of the federal airborne hunting act, and they
use the word 'agent.' It's the way things were done years ago.
The Department of Fish and Game didn't have staff in certain places
and people were authorized as agents of the department or under
contract to take 'x' number of wolves in certain areas."
Number 1096
REPRESENTATIVE CROFT asked Mr. Regelin whether he could be an agent
under this bill.
MR. REGELIN responded, "Only if I would approve it and I wouldn't."
[Laugher].
REPRESENTATIVE CROFT asked Mr. Regelin what standards would he use;
ones that are similar to the federal standards?
MR. REGELIN replied that he probably wouldn't ever use them because
they are so controversial. He has attended many public hearings
where they have been "a big bone of contention." In addition, the
public doesn't trust the department to allow people to do that in
wolf control situations, they want the department to do it
themselves. Mr. Regelin further stated, "If we ever build back up
the public trust, maybe we'd want to use agents, but I probably
would never ever do it myself."
REPRESENTATIVE CROFT asked, besides Mr. Regelin's resistance, is
there anything in SB 74 that would prohibit him from being an
agent?
MR. REGELIN replied the commissioner would name the agents. He
can't believe that the Board of Game would not set very stringent
criteria. In 1992 or 1993 the board passed language that would
allow agents, which was very stringent.
Number 1203
REPRESENTATIVE CROFT said, "But if we passed a bill that said 'or
agent,' we tend to get upset when, by regulation they write that
out of the law. I mean if it said, 'or agent,' you guys wrote
regulations that didn't allow it - we'd get into that kind of
conflict all the time and I could see a follow-up where we said
agent and we meant it and you haven't approved an agent request in
two years, and we're mad."
REPRESENTATIVE CROFT asked Mr. Regelin whether it's the
irreversible nature of a decline that makes it problematic; would
substantial or serious decline help?
MR. REGELIN replied the term "irreversible decline" is a real
problem because the department knows they can't meet that standard.
It needs to be clear that the commissioner makes a determination
based on his judgement and that there has to be a very serious
problem.
CHAIRMAN KOTT asked Mr. Regelin whether the federal government has
a similar wolf control program.
MR. REGELIN replied the federal government's wildlife service
program has a very active aerial coyote control program in
(indisc.--paper shuffling) western states in relation to livestock
predation. But the federal government isn't allowed to conduct
that type or program in most states, except for a little bit around
Palmer.
Number 1325
CHAIRMAN KOTT asked: "If we wrote into the law, agent, and there
were regulations that were promulgated that would authorize that,
what kind of accountability would you envision holding over the
heads of these agents who may run amiss or amuck?"
MR. REGELIN replied the department would be very cautious to not
allow anybody to be an agent that they didn't have a high level of
trust in. He said, "I think that was probably important 15 or 25
years ago, I'm not certain that it's that important on the agents
today because I think that it's hard for me to envision an area of
Alaska where we wouldn't put our own staff in the field to do it."
Number 1416
CHAIRMAN KOTT asked Mr. Regelin whether the airplane would have to
be set on the ground or can a person shoot from the air.
MR. REGELIN replied they usually use a helicopter or a fixed wing
airplane and shoot out of if in the air. He said it's no longer
hunting and it's no longer fair chase (indisc.) that would apply if
it's a department sponsored wolf controlled activity and the
department would want to do it in the most efficient and effective
way possible. He mentioned that they would always have a
helicopter to lift the wolf.
CHAIRMAN KOTT asked Mr. Regelin whether he envisions more than one
agent.
MR. REGELIN responded he doesn't envision agents at all. The
department would probably put two or three aircrafts in the air at
the same time and biologists would be pulled from different areas
in the state that are very good at this. It would be done with
their own staff. The shooter would always be a division employee
and they might contract with pilots, but they feel that they
already have that authority.
REPRESENTATIVE KERTTULA clarified as to whether - if the bill
passes - they could actually shoot and the commissioner could allow
that.
MR. REGELIN replied that is correct.
CHAIRMAN KOTT asked Mr. Regelin whether they are actually shooting
or are they blowing a dart.
MR. REGELIN replied they are actually shooting a dart propelled by
a 22-caliber shell.
CHAIRMAN KOTT asked Mr. Regelin whether the term "shooting" or
"shoot" is defined to allow a person to do that.
MR. REGELIN replied he's not sure.
Number 1645
HAYDEN KAYDEN came before the committee to testify. He said, "My
concern is more with the initiative process and what happens
afterwards. And I think this bill, as written, is unnecessary.
There is no real new information or changed circumstance that has
been brought forward that necessitates a major revision of the
initiative." He said the people have spoken on the issue through
the initiative process and the Department of Fish and Game is
living with the terms of the initiative and would be happy if the
committee tweaked a definition, which seems to be a fairly easy
thing to do and would not necessitate changing the whole terms of
the initiative. Mr. Kayden further stated, "It seems like all too
often, after an initiative passes we hear that the voters didn't
know what they were voting on. ... With all due respect, the people
aren't stupid, they elected you right. This type of a wholesale
revision of an initiative assumes that the people are stupid that
they can't read or that they're easily duped by these greater minds
from outside our state. I'd just say if you trust your
constituents you should leave the basic language of the initiative
alone until there's a demonstrable need to change it. A relatively
minor definition amendment makes Fish and Game happy and leaves the
will of the people in place."
REPRESENTATIVE MURKOWSKI asked Mr. Kayden whether he has any
suggested language.
MR. KAYDEN replied no he doesn't.
Number 1750
DICK BISHOP, Vice President, Alaska Outdoor Council, appeared
before the committee to testify. He directed the member's
attention to a copy of a postcard entitled, "Legislature to
Re-Legalize [sic] Airborne Wolf Shooting", and stated it is
absolutely false and the people that distributed it know perfectly
well that it's false.
MR. BISHOP further stated:
Senate Bill 74 does not relegalize anything. Airborne
hunting - that is shooting from the air is illegal under
federal law unless it is part of an approved state
management program and you've talked about the conditions
for accomplishing that approval. And it does not
relegalize same day airborne shooting that is land and
shoot by private citizens under conventional hunting or
trapping regulations. Senate Bill 74 does three things,
it eliminates the requirement that there be a biological
emergency before using aircraft in predator management.
... You talked a bit about possible definitions of
emergencies and so on, that as a rule in the practice of
wildlife management and that is my professional field
from which I've retired, management is done to prevent
biological emergencies. That the whole point of fish and
wildlife management is to provide for the maintenance of
fish and wildlife populations on the sustained yield
principle, and by definition that means that you do your
darnedest to avoid emergencies, biological or otherwise.
The law on the books now that was put there by the
initiative, requires that you sit on your hands until
there's a biological emergency before you undertake the
appropriate management and that is counterproductive
(indisc.--paper shuffling) to the logic of scientific
wildlife management. The point of management is to avoid
emergencies and to avoid being put in the situation where
you're forced to do something drastic in response to an
emergency. Second, the bill removes the unworkable junk
science definition of 'biological emergency.' I just saw
that term the other day and I think it fits here very
well because what we have is a very loose concoction of
ideas about what a biological emergency means and you've
already talked about the impracticality of talking about
an irreversible decline, and so on. In the law, as it
stands now, it would require that it be shown that the
decline in the prey population be a result of wolf
predation and that it couldn't recover without
instituting aerial shooting of wolves and that there's no
viable alternative to that. So it's essentially a
definition made for court not for wildlife management.
Finally, the bill does provide for management of
predation if necessary by the Department of Fish and Game
and authorized agents, and the essence of how authorized
agents has worked in the past is that the board and the
department have set requirements for the qualification of
agents that had to do with their ability and familiarity
with the area, their reliability as best the department
was able to tell, and they were permitted to assist the
department under rather strict operating conditions. It
does not relegalize SB 74, or same day airborne shooting
by the public, or aerial shooting. It does make it
possible for the department to use aircraft when it is
important to diminish predation on prey populations. ...
There is abundant evidence that predation is the
principal factor contributing to annual mortality of big
game prey and is often the principal factor holding down
big game prey populations. And, although this is an
issue of great public interest and concern, but when you
come right down to it, there's really only 10 to 15
percent of Alaska in total where it is either legally or
ecologically possible to undertake this kind of program
or even in most cases habitat management programs to
improve opportunities for prey populations to recover.
... There have not been any circumstances that have
arisen to point to in the recent past saying, 'Gosh,
we've just gotta fix this law because our hands have been
tied,' those situations where there have been low prey
populations such as a very low prey population in the
upper Kuskokwim where local people have asked for
predation control, have simply been deferred by one means
or another - the Administration has been unwilling to
address them. ... But frankly this provides perfect cover
for anyone in the Administration who is unwilling to face
the challenge of deciding whether there should predation
control in certain areas.
Number 2142
REPRESENTATIVE CROFT asked Mr. Bishop whether it's true that the
state program which is hampered now would be legalized under the
bill.
MR. BISHOP replied it is constrained but is legal under SB 74.
REPRESENTATIVE CROFT remarked that there was testimony that
indicated it's virtually impossible.
MR. BISHOP replied he agrees that it is virtually impossible.
However, it's not illegal. He added that it has not been
prohibited, but it has been greatly constrained.
Number 2214
REPRESENTATIVE CROFT stated it wasn't the airborne wolf shooting
part but the relegalized part that he [Mr. Bishop] took issue with
on the postcard.
MR. BISHOP explained that he objected to the postcard saying it
would relegalize airborne wolf shooting.
REPRESENTATIVE CROFT indicated that there would be, under the
bill's authority, a broader scope to shoot from the air with state
programs and in some cases state agents.
MR. BISHOP stated that it would expedite the process, but it is not
currently illegal for the state to shoot wolves from the air, even
under current state or federal law; it would not be relegalizing
it.
REPRESENTATIVE CROFT asked Mr. Bishop whether it would make it
easier for the state to shoot wolves from the air.
MR. BISHOP replied in the affirmative.
REPRESENTATIVE CROFT commented that the state is constrained now
and in a wider variety of circumstances the state could shoot
wolves from the air.
MR. BISHOP replied he's not sure it would be a wider degree of
circumstances. He's not sure broader is the right term either. He
added that he does agree, however, if the point is to make it more
feasible for the Board of Game and the Department of Fish and Game
to come to the conclusion that a situation warrants the use of an
aircraft.
Number 2321
REPRESENTATIVE CROFT said Mr. Bishop makes a good point about the
need to avoid biological emergencies. He asked, couldn't a
rational and well-informed public decide that they are going to do
everything first, and only in emergencies do wolf control because
of the effect on tourism or whatever?
MR. BISHOP replied, in general, he agrees with that statement. The
committee might consider passing a law that would ensure there was
a rational and well-informed public [laughter]. But when
information like the postcard is floating around it's hard to have
a rational and well-informed public.
REPRESENTATIVE CROFT remarked it was legal as a state program.
MR. BISHOP replied that's correct.
REPRESENTATIVE CROFT added that this severally constrains the
parameters of the state program.
MR. BISHOP replied that's correct.
Number 2398
REPRESENTATIVE KERTTULA asked Mr. Bishop whether he thinks that the
bill would allow aerial shooting before an emergency.
MR. BISHOP replied it would allow aerial shooting before an
emergency, especially in the sense of how biological emergencies
are currently defined in law. There have been situations where it
was very clear both to the Department of Fish and Game and to the
Board of Game. He cited that unless the predation was reduced in
the 40-mile area along the Taylor Highway the moose population had
no possibility of recovering within any reasonable length of time,
if at all. So the recommendation was made through the board to
conduct aerial shooting of wolves by the department and perhaps by
agents. That was done for a year or two and the result was that
the moose population did begin to recover. He said, "Well, whether
you could fit that situation into any particular definition of
'biological emergency,' I would be reluctant to say, but I guess I
would add that I would also be reluctant to try to invent a
definition of 'biological emergency' that would be put in
statute..."
TAPE 99-49, SIDE B
Number 0001
REPRESENTATIVE KERTTULA stated she doesn't disagree with that, but
if there is no legal standard there is a risk of being challenged
in court.
MR. BISHOP replied he agrees. There is a possibility of
challenging the adequacy of the information.
REPRESENTATIVE KERTTULA indicated that she would like to see a
better definition of biological emergency. She realizes that is
not easy, however.
Number 0054
STEVE PERKINS testified via teleconference from Dillingham. The
bill would work. It is the only effective way to manage wolves in
many areas of the state. Wolves need to be managed in order to
manage ungulates - moose, caribou, deer and sheep. In regards to
the agents, they should be qualified members of the public who are
willing to harvest wolves expertly and with virtually no cost to
the state. He indicated that an added benefit would be the money
added to cash poor economies of the state. Alternatives like
sterilization and transplanting are very costly and unacceptable to
the segment of the public that does not want to see any game
management at all. He further commented that the legislature is
charged with managing game in accordance with Article VII, Section
4, of the constitution on a sustained yield basis, which is not
being done at present. The Board of Game has had its hands tied by
not being able to use this most valuable tool that SB 74 would
provide. He said that he would like to know and he would like the
legislature to know what the additional costs are for implementing
some of the programs that seem to be failing.
Number 0151
CHAIRMAN KOTT asked Mr. Perkins whether he is aware of discussions
that have taken place with the Board of Game that may have
suggested that they would have implemented a same-day wolf hunting
airborne policy if they had been given looser conditions.
MR. PERKINS replied yes. He attended the last Board of Game
meeting and he thinks that they have some programs that are suppose
to be ongoing throughout the state, but they can't implement
anything with the way the law is now; SB 74 may change that,
however.
JOEL BENNETT, Wolf Management Reform Coalition, came before the
committee to testify. He is a member of the coalition that
sponsored Proposition 3 in 1996, which is now AS 16.05.783 and the
statute that SB 74 changes. He read from a letter:
Dear representative, we believe that SB 74 does not
currently reflect the will of the people in this state
nor does it represent the view of the people in your
various districts. We believe that the public still
opposes the use of aircraft to control wolves in Alaska.
Wolves are causing a serious decline in a prey population
and there is no other feasible alternative. SB 74
eliminates this standard completely. In addition SB 74
allows the use of agents, raising serious questions of
control and accountability. Proposed control programs,
in the past, have drained state time and resources over
the years and have rarely been implemented. In 1996, an
overwhelming 58 percent of Alaskans voted against this
method absent serious biological problem. There is
simply no widespread pressure to change current law.
High numbers of wolves are already being taken each year
by other legal means, such as trapping, snaring and
ground shooting, and the state is presently controlling
wolves through sterilization and relocation.
MR. BENNETT indicated that the letter was signed by former members
of the Board of Game: James Brooks, former commissioner of
Department of Fish and Game; Jack Lentfer, former regional
supervisor of Department of Fish and Game. He referred to the
postcard that Mr. Bishop mentioned, and stated that the coalition
spent a lot of time trying to find language that did not suggest
that SB 74 relegalizes aerial hunting. Specifically, the word
"shooting" was used to underscore that point. He is constantly
perplexed and disturbed by how the groups opposed to the statute
want to pick it apart. They have been trying their best to
characterize what SB 74 does and does not do. If Mr. Bishop has
discovered, through a long study of the postcard, that there is a
slight mischaracterization, he believes it is a petty comment and
conclusion. He pointed out that the thrust of the postcard says
that, in fact, airborne wolf shooting would be reauthorized on an
expanded basis, which is what SB 74 does. He added that they would
have used the word "hunting," if it was going to relegalize land
and shoot hunting.
MR. BENNETT referred to Senator P. Kelly's sponsor statement
indicating that the bill would preserve the original stated intent
of the 1996 ballot measure. The bill does not preserve the
original intent of the 1996 ballot measure, because it simply goes
too far. Instead of clarifying specific terms and modifying them,
it removes part of the heart of the 1996 ballot measure. He
doesn't think that Senator P. Kelly would find that the coalition
involved in this process would have any difficulty with the well-
meaning working group that modified some of the terms in the
statute through the committee and a broader legislative effort.
Nobody ever said that the language in the initiative was absolutely
perfect. It is to the credit of the people who advanced the
initiative that they're willing now to consider meaningful changes
that do address Senator P. Kelly's concern. He agreed that an
irreversible decline, while it wasn't meant in the beginning to be
the last stage, could be interpreted that way. He would not be
opposed to better language. Also, he thinks that other terms
brought forward could be best dealt with by a specific amendment
giving the commissioner the maximum degree of discretion to
determine when the facts adequately support the need to go ahead
with this rather extraordinary method. Similarly, a red flag has
been introduced because with the present statute there is simply no
way that the Department of Fish and Game can respond to diseased
animals. He would not object to clarifying that point. The agent
question is perhaps the one part where he feels there is an
impasse. He doesn't believe that it is good public policy to do
that, because it has to do with past experience, accountability,
control, and public perception. He pointed out that some people
don't have a place in this business and to the extent that the
public identifies those people as being prime candidates now for a
new program, if agents were authorized, he feels there would be a
serious lack of confidence. In conclusion, he stated that there
needs to be clarification and it is a reasonable matter to do that,
but SB 74 goes too far. He appreciates the sponsor's efforts to
maintain the original intent of the initiative, but he still feels
that the language in the bill modifies the original ballot measure
in a very substantial way.
Number 0664
RICHARD WALLEN, Wolf Management Reform Coalition, came before the
committee to testify. He read his testimony:
I'm a long time resident of Alaska and a member of the
Steering Committee for the recently passed public
initiative on same day airborne wolf shooting. I'm
opposed to the passage of SB 74 in its present form.
I served a term on the Board of Game from 1990 to 1993
following a decade of bitter controversy on the wolf
issues. In an effort to resolve the issues a citizens'
Wolf Management Planning Team, recommended by the board,
was formed and facilitated by the Alaska Department of
Fish and Game. Members of the team came from all parts
of the state and represented many viewpoints on the wolf
issues from those of animal protectionists to those of
aerial hunters. I recall that there were twelve team
members and they convened monthly or bi-monthly during
1991 in different parts of the state. I attended several
of the meetings, alternating with other Board of Game
members.
Among the points of consensus coming out of this effort
was a recommendation that same day airborne hunting be
banned, that wolves be elevated, for management purposes,
to equal status with other large mammals, and that
control programs be a special tool to be applied when
ungulates were threatened with a decline toward a
"predator pit." Not withstanding the recommendations of
the team, in late 1992 the board authorized three
controversial wolf control programs over areas of the
state about the size of Montana. Some of the team
members, feeling betrayed, resigned in protest, and state
and national public reaction was swift and painful for
Alaska. Bowing to the magnitude of the protest, Governor
Hickel halted the program and convened a National "Wolf
Summit" in Fairbanks, which I attended. The consensus of
the Summit mirrored that of the Planning Team. Wolf
Control should be reserved to prevent incipient
biological emergencies.
The scale of the protest was beyond anyone's predictions.
By the state's own figures, when the Governor canceled
the control programs, Alaska had lost $85.6 million in
tourism revenues, and many millions more when the loss of
Alaska jobs was figured in. I have included copies for
you from the Alaska Economic Report, February, 1993.
Some people dismiss that protest as interference in
Alaska's affairs by 'Outsiders'. This conclusion
overlooks Alaska public opinion. It dismisses the work
of the Planning Team, the Wolf Summit, Alaska public
opinion polls, and the recently passed Public Initiative.
Alaska's expensive Wolf Wars have exacted a toll in time,
money and public confidence in Alaska's wildlife
managers. Their history is one of wolf control advocates
winning battles with Boards and Legislatures while losing
the war in both public opinion and in control programs
carried out. SB 74 in its present form will trigger
another round in the Wars if control programs are
instituted when no impending biological emergency can be
demonstrated, if agents other than Fish and Game
personnel are used, or if other actions are taken outside
the guidelines approved by the voters in the initiative.
MR. WALLEN indicated that one of the reasons the public opposes the
use of agents is a matter of motive. If there are people pushing
for a wolf control program in order to pay for gasoline for a Super
Cub it gives the public a lot less confidence. Whereas, if the
state does it, and is willing to take the heat from the public and
justify the program, then the question of motive doesn't enter into
the picture.
Number 0903
REPRESENTATIVE CROFT asked Mr. Wallen what is meant by the term
"predator pit" and does it have to do with an irreversible decline.
MR. WALLEN replied the term "predator pit" is when a predator has
taken a prey species down to a point where that species cannot
recover within a certain period of time.
REPRESENTATIVE CROFT asked Mr. Wallen whether that was the genesis
of the language in the initiative.
MR. WALLEN replied yes.
Number 0958
AMY SKILLBRED came before the committee to testify. She explained
that she was one of the people who stood outside of K-Mart in 1996
to collect signatures for the initiative. One of the things that
warmed her on those cold evenings was that invariably people signed
or they said that they had already done so. It was very heartening
to be volunteering and collecting signatures on something that was
so well received by the public. She pointed out that in 1996 it
was the initiative that received the most votes of any initiative
that was on the ballot. Alaskans voted against aerial wolf control
except for under vary limited circumstances. She was glad to hear
that the Department of Fish and Game recognizes the public's
involvement in this issue, because the public does play an
important roll in what happens with wolf control in Alaska. The
tourism boycott was real and it was a cost to the state, so the
cost to the state needs to be taken into consideration if there is
not a specific kind of wolf control program. She stated that HB
74, as written, does not preserve the original intent of the ballot
measure passed in 1996. In fact, the existing state statute has
the exact language from the ballot measure, so it didn't go through
any interpretation when it became statute. She feels that SB 74
undermines the 1996 wolf initiative by removing the limitations
that were intentionally included in the initiative. Specifically,
it removes the requirement of a written finding, the requirement of
limiting airborne wolf control to the geographical area, the
requirement of only taking the minimum number of wolves necessary,
the requirement that there be no feasible solution other than
airborne control, and the requirement that only the Department of
Fish and Game personnel be the ones authorized to carry out the
wolf control. One of the things that she thought was heartening in
the hearing was the discussion on redefining the term "biological
emergency." It seems that section is why the Department of Fish
and Game has a difficult time operating within this law. She
concluded that the objective of the initiative was for aerial
shooting of wolves to be the last remedy used by the Department of
Fish and Game for wolf control. She added that wolf control has
not stopped in the state; they're just figuring out a better way of
doing it.
Number 1221
DOUGLAS POPE testified via teleconference from Anchorage. He
indicated that he is one of the two original sponsors of the
initiative, along with Joel Bennett. He said that they would be
willing to talk about amendments and one thing he would like to
emphasize is that at the time they drafted the initiative it was
not just a few people sitting around a table. He served as the
chairman of the Board of Game when the board grappled with these
issues in 1991, and he recalls a meeting where they spent ten days
exclusively on the current issue. He ran that committee and they
met from 8:00 a.m. until 8:00 p.m. for ten straight days until they
got to a point where they had to take a recess because one of the
members was complaining of chest pains. They discussed all of the
same concepts being discussed currently. He said that Joel
Bennett, Richard Wallen and himself all attended the National "Wolf
Summit" that Governor Hickel called in Fairbanks that lasted three
days. It was out of those meetings that the language in the
initiative was born. The "biological emergency" definition was in
essence what was being discussed at the time as the conditions
under which aerial wolf control should move forward.
MR. POPE further stated that he would like to address some of the
basic concepts in the initial initiative and why those choices were
made. The first and one of the most important choices is whether
it's going to be the commissioner of the Department of Fish and
Game or the Board of Game who is going to make a decision to
implement wolf control with the use of airplanes. It is obvious
from the past and the tourism boycott that the Board of Game can
make decisions that can impact the entire state. The way things
happen on the Board of Game are similar to that of the legislature;
there are incredible lobbying pressures. They lobby for what their
members want, which many times involves aerial wolf control to
increase moose and caribou populations to higher levels to be
harvested by hunters. There is nothing wrong with that, but when
a board makes a decision like that, it has the potential to affect
tourism revenues. It seems pretty obvious to the coalition that
this is a decision that needs to come from the commissioner who is
directly responsible to the governor, rather than from the board.
MR. POPE further stated that the reason for the language, "there is
no feasible solution other than airborne control," is because
frequently they found that there would be over-hunting of certain
populations of moose and caribou and that population would
collapse. As soon as the moose and caribou populations started
showing stress, the people would run to the Board of Game and start
clamoring for a wolf control program to control wolf predation. In
Canada they do have a successful aerial predation control program,
but one of the things they absolutely insist upon is that there
will be no open hunting seasons prior to any aerial wolf control
program being implemented. In addition, the reason that the "no
feasible alternative" language is in SB 74 is because there
typically is a feasible alternative to over-hunting and that is to
reduce the hunting pressure so that the moose and caribou
populations will come back. He explained that wolf control is an
extremely controversial subject with the public and it is very
draining to the biologists in the Department of Fish and Game,
while the attention should be given to other things. He said that
he applauds the Department of Fish and Game for saying that they
can live with some revisions to the bill, because they want a
program that the public can accept. The public will not accept
wolf control with the use of aircraft except as a last resort. He
urged the committee to keep that in mind.
MR. POPE further stated that he is prepared to suggest some
amendments. He thinks that the reference in the current law to the
term "adequate data" creates some mischief that no one intended,
and he would not have a problem with deleting references to that
term. He is also prepared to work with the committee and the
department to come up with a different definition of the term
"biological emergency." He referred to Representative Croft's
suggestion to change it from an irreversible decline to a serious
decline and said that it is worth some discussion. He explained
that irreversible decline is not something that they made up; it is
something that the biologists and managers were talking about in
the early 1990s when all the wolf wars were going on. He pointed
out that SB 74 makes the situation worse then before the
initiative; it opens the door to going back to the day when there
were wolf agents that were hired by the state and federal
government to go out and kill wolves. He knew people that killed
100 to 150 wolves a year and they were payed to do it by the state
or the federal government. He doesn't see how the public can
distinguish between a gun hired by the Department of Fish and Game
and a hunter out there hunting with a hunting license. The public
does not make that distinction.
Number 1994
TONY UTT testified via teleconference from Wasilla. She stated
that she opposes SB 74 and any effort to change the 1996 ban on
same day airborne wolf shooting. If there is a biological
emergency, instead of creating another possible biological
emergency in another species by killing, sterilizing or relocating,
why not close the hunting seasons like they have done for fishing
in the past.
Number 2053
DAVE KELLYHOUSE testified via teleconference from Tok. He has had
a 20-year career as a fish and game biologist in Alaska. He
applauded the committee for listening and trying to sort out the
information given in testimony. Over-hunting, contrary to what Mr.
Pope just said, was insignificant. The moose population declined
because of severe winters and predation. He stated that he
supports SB 74. All it does is provide the commissioner with the
authority that the voters of the state thought they had allowed the
commissioner when they voted in 1996. He believes that the voters
were mislead then and he believes that Mr. Bishop was right that
the flier is also misleading. The willingness of the proponents of
the 1996 ballot initiative to entertain amendments to what
constitutes a "biological emergency" is a new found grace on their
part. They realize that they have been exposed in front of the
committee. As far as agents of the state go, that language simply
mirrors the language in the 1971 federal airborne hunting Act. The
agents of the state would clarify that the Department of Fish and
Game could indeed use charter pilots, because charter pilots are
not currently employees of the state. SB 74 would also clarify
that the commissioner would have unilateral authority to authorize
same day airborne taking of these animals, if an emergency arose.
He added that he whole heartedly supports SB 74.
CHAIRMAN KOTT closed the meeting to public testimony.
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
ADJOURNMENT
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 4:22 p.m.
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