Legislature(1999 - 2000)
05/03/1999 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.