Legislature(2003 - 2004)
04/16/2003 01:00 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 16, 2003
1:00 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 93
"An Act relating to limitations on actions to quiet title to,
eject a person from, or recover real property or the possession
of it; and providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 64
"An Act requiring certain consumer reporting agencies to provide
individuals with certain information without charge."
MOVED CSSB 64(JUD) OUT OF COMMITTEE
SENATE BILL NO. 155
"An Act relating to hunting on the same day airborne; and
providing for an effective date."
MOVED CSSB 155(JUD) OUT OF COMMITTEE
Confirmation Hearings:
Commission on Judicial Conduct - Richard Burton;
Select Committee on Legislative Ethics - Shirley McCoy;
CONFIRMATIONS ADVANCED
PREVIOUS ACTION
SB 93 - See Labor and Commerce minutes dated 3/11/03 and 4/1/03.
SB 64 - See Labor and Commerce minutes dated 2/20/03 and 4/3/03.
SB 155 - See Judiciary minutes dated 3/31/03 and 4/4/03.
WITNESS REGISTER
Mr. Richard Burton
Ketchikan, AK 99901
POSITION STATEMENT: Answered questions pertaining to his
confirmation
Ms. Shirley McCoy
Juneau, AK 99801
POSITION STATEMENT: Answered questions pertaining to her
confirmation
Ms. Amy Seitz
Staff to Senator Wagoner
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 93 for the sponsor
Mr. Tom Scarborough
1676 Taroka Dr.
Fairbanks, AK 99701
POSITION STATEMENT: Opposed to SB 93
Mr. Henry Crow
No address provided
POSITION STATEMENT: Opposed to SB 93
Mr. Jim Butler
Baldwin & Butler
125 N Willow
Kenai, AK 99611
POSITION STATEMENT: Supports Version V of SB 93
Mr. Jon Tillinghast
Simpson, Tillinghast, Sorenson & Longenbaugh
One Sealaska Plaza
Juneau, AK 99801
POSITION STATEMENT: Answered questions about SB 93
Mr. Steve Cleary
Alaska Public Interest Research Group
PO Box 101093
Anchorage, AK 99510
POSITION STATEMENT: Supports SB 64
Mr. Sam Trivett
No address provided
POSITION STATEMENT: Supports SB 64
Ms. Marie Darlin
Capital City Task Force - AARP
Juneau, AK 99801
POSITION STATEMENT: Supports SB 64
Mr. Matt Robus
Division of Wildlife Conservation
Department of Fish & Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Answered questions about SB 155
ACTION NARRATIVE
TAPE 03-24, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:03 p.m. Senators Ogan, Ellis
and Seekins were present. Senator French arrived shortly
thereafter. The first item to come before the committee was the
confirmation of Richard Burton to the Alaska Commission on
Judicial Conduct.
CONFIRMATION ALASKA COMMISSION on JUNDICIAL CONDUCE
MR. RICHARD BURTON, nominee to the Alaska Commission on Judicial
Conduct, told members he is a retired commissioner of the
Department of Public Safety (DPS) and a resident of Ketchikan.
He has been involved in public service all of his life and he
has a high regard for law and order and public safety. He is
very familiar with Alaska's judicial system and has a desire to
continue to participate in public service.
SENATOR OGAN asked Mr. Burton to describe what kind of judicial
conduct he would consider to be inappropriate.
MR. BURTON said the commission does not investigate unless a
complaint is filed. The commission's responsibilities are to
screen and review complaints and pass them on to the court for
action. He then gave more biographical details. He came to
Alaska as a teenager and ran survey crews to build highways. He
quit that work because it was seasonal and ended up working for
the police department in Ketchikan. He went to Vietnam as a
police advisor for the State Department for two years and then
served as commissioner of DPS under Governor Hammond. He also
set up police departments in Saipan and on Indian reservations.
He then worked for Governor Hickel and eventually did consulting
work for police departments. He is serving his third year on the
Ketchikan Gateway Borough Assembly.
SENATOR OGAN asked Mr. Burton how he plans to hold the judicial
branch accountable. He asked Mr. Burton if he read the
applicable statutes and what kind of complaints he anticipates
reviewing. He said it is common knowledge that police are not
always enamored of judicial decisions and asked whether that
would be an issue if he serves.
MR. BURTON said some of his closest friends are judges and
attorneys. He said his decisions would not be based on his
opinion of a judge's conduct. The Alaska Commission on Judicial
Conduct is one of the few constitutionally established boards.
It has a well-balanced membership of three judges, three
attorneys, and three lay members. He does not believe one ex-
police officer will carry a lot of weight and slant decisions
one way or the other. He said he has a lot of respect for the
judicial system and has no axes to grind. He pointed out that
Judge Fitzgerald was his employer when he was the first
commissioner of DPS.
There being no further questions, Senator Ogan moved Mr.
Burton's name, with no particular recommendation, to the full
body for consideration for confirmation as a member of the
Alaska Commission on Judicial Conduct.
CHAIR SEEKINS announced that without objection, Mr. Burton's
nomination moved to the full body for consideration. He then
called Shirley McCoy.
CONFIRMATION - LEGISLATIVE ETHICS COMMITTEE
MS. SHIRLEY ANN McCOY, nominee to the Select Committee on
Legislative Ethics, told members she has served on the ethics
committee for nine years and is up for reconfirmation. She noted
that she sent members a copy of a statement she sent following
her initial confirmation hearing. That hearing was not completed
and the next hearing was cancelled. She said she would prefer to
concentrate on her reputation and not on a hearing that has
nothing to do with her confirmation.
SENATOR FRENCH thanked Ms. McCoy for attending and said her
demeanor at the earlier hearing impressed him. He said he is
personally happy that she is willing to serve in this capacity.
SENATOR ELLIS commented that the ethics committee is not the
easiest place to provide public service. He thanked Ms. McCoy
for the years she has served and her willingness to continue to
do so.
There being no further questions, Senator Ogan moved the name of
Shirley McCoy to the full body with no particular recommendation
for consideration of her nomination to the Select Committee on
Legislative Ethics.
CHAIR SEEKINS announced that with no objection, Ms. McCoy's name
would be forwarded to the full Senate for consideration. He then
asked her if her nomination has been considered in the House
committees.
MS. McCCOY said she has no idea what is going on with the House.
She then commented that the ethics committee has been stalemated
because numerous members are up for confirmation. She asked
legislators to consider making a change so that ethics committee
members are considered in January so that the committee can move
forward with its work.
SENATOR OGAN said he believes the ethics committee has the
authority to act regardless of whether members have been
confirmed.
MS. McCOY agreed, but noted that on several occasions decision-
making has carried over for two or three meetings and it is
difficult when a member is replaced mid-way through addressing a
complaint.
CHAIR SEEKINS said the Boards of Game and Fisheries share that
same frustration. He thanked Ms. McCoy and announced SB 93 to be
up for consideration.
SB 93-ADVERSE POSSESSION
MS. AMY SEITZ, staff to Senator Tom Wagoner, sponsor of SB 93,
told members that adverse possession is an archaic doctrine. It
was established during the Middle Ages when the government
wanted a vast amount of wild land put to use. A trespasser could
squat on property and after a period of years, the trespasser
would gain title to the property at the expense of the true
owner. SB 93 will align some of the rights of private property
owners with the rights of the state and federal governments that
have already exempted themselves from adverse possession laws.
CHAIR SEEKINS interrupted Ms. Seitz to ask that the proposed
committee substitute be addressed.
SENATOR OGAN moved to adopt the proposed committee substitute
for SB 93, version V, and then objected for the purpose of
hearing an explanation of the changes.
CHAIR SEEKINS asked Ms. Seitz to continue her overview on the
bill.
MS. SEITZ told members the changes made in Version V are on page
2, beginning on line 7. The phrase "or other interest in land
necessary for the construction, management, operation, or
maintenance of a public transportation or public access right-
of-way" was added. The reason is that the Department of
Transportation and Public Facilities (DOTPF) is concerned that
the original language would not include land outside of the
right-of-way area, such as rest stops and culverts.
SENATOR OGAN said he was looking at the previous bill and the
sentence Ms. Seitz described is also in that version.
MS. SEITZ replied, "The uniform version was not the version that
was passed out of [Senate] Labor and Commerce. That was a draft
CS that Senator Wagoner and everyone agreed would not be adopted
so I believe the Q version... was passed out of Labor and
Commerce."
The committee took a brief at-ease.
CHAIR SEEKINS said that members now had a copy of version Q,
which passed from the Senate Labor and Commerce Committee and
they could compare that to Version V.
MS. SEITZ repeated the change to Version V is on page 2,
beginning on line 7.
SENATOR OGAN asked why that language was added.
MS. SEITZ said it was added to include the land outside of the
right-of-way areas that is necessary for maintenance of rights-
of-way, such as rest stops, ditches and culverts.
CHAIR SEEKINS explained that a fill area overlapping a right-of-
way would also be covered under this legislation.
MS. SEITZ agreed.
SENATOR OGAN asked for an explanation of the phrase,
"uninterrupted adverse notorious possession."
MS. SEITZ said that phrase is in AS 09.45.052.
SENATOR OGAN asked what would be accomplished by adding the new
subsection (c) that deals with uninterrupted adverse notorious
possession.
CHAIR SEEKINS explained DOTPF is concerned that without this
provision it could not use federal funds to build a road because
it would not be able to tell the federal government it had clear
title to a right-of-way.
SENATOR FRENCH said instead of the state having to prove that it
owns every square inch of a right-of-way it could rely on the
fact that a road has existed for 20 years. Even if it didn't
have proof through an uninterrupted title, it could say it owned
it through adverse possession.
CHAIR SEEKINS said without that provision, DOTPF would have to
prove that it owned every square inch.
SENATOR OGAN reminded the committee to be mindful of private
property rights as well. He maintains that DOTPF has gotten by
for years without this language and questioned why it is
necessary now and how it will affect private property rights.
CHAIR SEEKINS said it was included because the committee is
trying to change the first section of the bill. In order to do
that, the state must make it clear that it is continuing with a
policy that has already been in effect.
SENATOR FRENCH agreed and said it basically extinguishes adverse
possession as to all players in the state except for the state.
SENATOR OGAN removed his objection and version V was the
document before the committee.
CHAIR SEEKINS called for public testimony.
MR. TOM SCARBOROUGH, a registered land surveyor from Fairbanks,
said if Alaska extinguishes this right, it might be the first
state to do so. Most likely, most Alaskan surveyors are
adamantly opposed to preventing adverse possession. Many
driveways in the Fairbanks Northstar Borough trespass on someone
else's property. Many of the rights-of-way in some areas have
been developed from adverse possession because they have been
used for many years. He said it is not right to extinguish this
doctrine because the Native corporations do not want to spend
money to police their own property.
SENATOR OGAN asked Mr. Scarborough how this bill would affect
those people who have driveways on property that does not belong
to them.
MR. SCARBOROUGH said it is common for a driveway to cross the
corner of a neighbor's lot. If your neighbor decides he doesn't
want the driveway there anymore, you would have no rights and
access to your property could be blocked even though you used
the driveway for many years without any objection. He said he
believes the current statute reads that to maintain right to
one's property, the individual has to block access at least once
per year.
MR. HENRY CROW, a commercial fisherman and homesteader stated
opposition to SB 93. He said the current statutes are adequate
to handle any kind of land infringement. SB 93 will open up a
can of worms. Whenever a law is enacted that infringes upon the
Constitution or the Bill of Rights, we go back to anarchy and a
time when there were no laws to protect the individual. The
right to have or possess a dwelling or shelter goes back to when
God gave the Torah and other laws to mankind. He told members
that Senator Wagoner informed him that this bill failed three
times and he asked members to reject it again as it is
unnecessary.
MS. SEITZ told members that DOTPF staff, a representative from
Sealaska Corporation, and Jon Tillinghast were available to
answer questions.
SENATOR FRENCH noted that version U included an exemption for
prescriptive easements. He asked why version V removed the
exemption.
MS. SEITZ said that a representative of the Homer Electric
Association (HEA) spoke to Senator Wagoner several days ago to
express concern that some of their power lines that go through
easements might be affected so subsection (d) was removed.
SENATOR FRENCH asked if the exemption was inserted at HEA's
request and then removed at HEA's request.
MR. JIM BUTLER, an attorney representing HEA, said this bill was
brought to his attention a few weeks ago while he was in the
process of working with the land manager to evaluate the scope
of utility easements that have been proven through the
prescriptive easement process. He has been trying to find out
what other interests the bill attempts to address to see if all
parties could agree on some language. Subsection (d) in version
U appears to address the issue but he wants to clearly
understand whether simply addressing prescriptive easements is
sufficient. He is also attempting to understand some of the
other issues raised for other types of prescriptive easements.
He asked Senator Wagoner's staff for a little more time to
address the issue.
SENATOR FRENCH asked if this bill would be held in committee and
if the easement issue is up for study.
CHAIR SEEKINS said because there are unanswered questions, he
plans to hold it over for another meeting.
SENATOR OGAN asked what motivated the sponsor to introduce the
bill.
[SENATOR THERRIAULT joined the committee.]
SENATOR WAGONER informed members that Sealaska Corporation asked
him to introduce this bill. It deals with a lot of Sealaska and
other Native corporation property. The corporations have had
many problems and hire people to police their lands to make sure
no one is squatting on their properties.
SENATOR OGAN said one of his concerns is that large private
properties might not have an RS 2477 or other access to their
lands so the only avenue available to them is adverse
possession. He said part of a landowner's responsibility is to
check his or her land and, if someone built a cabin on that
land, the landowner has 10 years to find it.
SENATOR WAGONER said that Sealaska's attorney could address that
issue.
MR. JON TILLINGHAST, legal counsel for the Sealaska Corporation,
told members that a private landowner is obliged to police his
land only because the government has imposed an obligation on
the private landowner to do so. One of the ironies of that
requirement is that the government does not put the same
obligation on itself. If one asks why a person cannot get
adverse possession rights against the state or the United
States, they are told it is because the government's land
holdings are large and remote and it would be an undue burden to
police its own land. Sealaska thinks that logic applies equally
to private lands. The doctrine of adverse possession used to
have legitimate social functions. It came about because
possession used to equate to title. The doctrine went through a
lot of iterations and came to the U.S. when the railroads were
getting large grants of land adjacent to the lines they were
laying. Western legislators wanted individual homesteaders to
take that land from the absentee railroads so the doctrine was
imported to the western states. He said he does not believe it
is the state's public policy to take land from large
corporations and give it to individuals at no cost.
MR. TILLINGHAST said when writing the bill, Sealaska tried to
take care that it would not affect existing rights. Section 3
says if a person has driven across a driveway for 10 years,
nothing in this bill takes that right away. However, from now
on, if one wants to drive across another person's property, the
person will have to pay for it.
SENATOR THERRIAULT asked about situations in which people
thought their driveways were legitimately on their own property.
MR. TILLINGHAST said there are two types of adverse possession:
bad faith and good faith. The bad faith involves a person who
moves onto a piece of property and builds a squatter's cabin.
The good faith involves a person with a deed for a piece of
property and he thinks he knows the boundaries, but ends up
inadvertently using adjacent property. He said the bill
introduced last year would have abolished good faith adverse
possession. This bill does not, it only deals with bad faith
adverse possession where a person has no written instrument
whatsoever on which to base his claim. He said the bill would
not affect the people in Senator Therriault's example.
SENATOR OGAN said that a previous testifier said that if this
bill were enacted, Alaska would be the first state to undo its
adverse possession laws. He asked if that is accurate.
MR. TILLINGHAST said to the best of his knowledge that is
correct. He said that in response to a question about the need
for state governments since a federal government exists, Justice
Brandeis said that states serve as laboratories for improvement
of our laws. He said Alaska is the first state to take a hard
look at where the doctrine of adverse possession came from and
whether it serves any continuing social utility.
SENATOR OGAN said he probably could claim adverse possession on
his neighbor's land because he's been riding his horse across
that land for over 20 years. He asked if he would have to assert
possession before the effective date of this bill.
MR. TILLINGHAST said his possession would have to be
uninterrupted, adverse, contrary to the owner's interest and
notorious, meaning it was not a hidden activity. He said if
Senator Ogan could meet all of those requirements, he would have
a vested right to the easement now and the bill would not take
that away.
SENATOR THERRIAULT asked if that would grant a right to an
easement, not to ownership.
TAPE 03-24, SIDE B
MR. TILLINGHAST said that is correct.
CHAIR SEEKINS said he would hold SB 93 in committee to give
everyone a chance to get their questions answered. He thanked
participants and announced the committee would take up SB 64.
1:52 p.m.
SB 64-CREDIT INFORMATION
SENATOR HOLLIS FRENCH, sponsor of SB 64, explained to members
that SB 64 is aimed at stemming the growth of identify theft,
which is one of the fastest growing crimes in America. It is
believed that more than 750,000 people may be victims of
identity theft each year and each will spend many hours and
typically, more than $1,000 to repair the damage done to his or
her reputation and finances. Victims of identity theft continue
to be turned down for loans, credit and for jobs long after the
initial damage. They are victims, but are often made to feel
guilty. The first indication many people have that they have
been victimized is when credit problems surface. Regularly
reviewing one's own credit report is an easy way to stop
identity theft in the early stages. Providing Alaskan consumers
with one free credit report a year will not only help consumers,
but also the many businesses that extend credit. Minimizing
losses to the business community through identity theft is one
aim of this legislation.
SENATOR FRENCH said businesses inspect consumer credit histories
when they evaluate applications for credit, insurance,
employment and even leases. An individual's credit history is
recorded in files maintained by credit reporting agencies that
sell those reports. A credit report often contains information
about a person's income, debts, credit and payment history, and
it also indicates whether a person has been sued, arrested or
filed for bankruptcy. If that information is incorrect, the
consumer can suffer. SB 64 will require consumer-reporting
agencies that maintain files on Alaskans to provide an Alaskan
with one free copy of his or her file once a year if requested.
The report would include all consumer and credit reports. Six
other states have taken similar strong action to help consumers
protect and correct their credit ratings.
SENATOR THERRIAULT moved to adopt Amendment 1 and asked Senator
French to address the proposed amendment.
SENATOR FRENCH told members the amendment was drafted after he
spoke with Chair Seekins about his concern that businesses that
extend credit might somehow become responsible for notifying
customers of this right. He said that is not the aim of the
legislation. The purpose is to enable Alaskans to contact the
three big credit-reporting agencies and tell them that under
Alaska law they are entitled to one free credit report each
year.
CHAIR SEEKINS said it is not uncommon for businesses to have to
prove that they gave notice to consumers. He said if someone
came to his dealership and applied for credit from the Ford
Motor Credit Company, he might be required to notify that person
of his or her right and if he did not do so, he could be subject
to penalty. The objective of the amendment is to make sure that
someone in the business of providing a loan is not required to
notify the applicant of this particular right.
SENATOR THERRIAULT again moved to adopt Amendment 1.
CHAIR SEEKINS announced that without objection, Amendment 1 was
adopted.
SENATOR FRENCH said in his experience, states with similar laws
post this consumer right on their state websites.
CHAIR SEEKINS said he has found that credit-reporting agencies
do not necessarily object to having to provide one free report.
They see it as a marketing opportunity for their reporting
services.
SENATOR FRENCH said that is a valid point because credit-
reporting agencies frequently market one free credit report as a
come-on to certain individuals. His take is that when people see
something offered for free on a website, they know there is a
hitch.
CHAIR SEEKINS said they should know that, but many people do not
make that connection. He said he is not arguing against the
bill, he is just saying those people that take advantage of it
should expect to be targeted for additional solicitations. He
then took public testimony.
MR. STEVE CLEARY from the Alaska Public Interest Research Group
(AkPIRG) said this bill would provide one more tool for
individuals to manage their own credit. It also puts the
responsibility for maintaining your own file on the consumer. He
said identity theft is on the increase, especially among the
elderly and AARP and similar organizations will be excited about
this bill.
CHAIR SEEKINS said he would be careful about advising people
that one credit check per year will prevent them from having
their identity stolen.
MR. SAM TRIVETT said that SB 64 is an excellent consumer
protection bill. He is the president of the Retired Public
Employees Association and although he is not representing that
association today he is aware that identify theft is a big issue
for older people. SB 64 will encourage citizens to do checks. He
found he had several credit cards listed on his report from
stores that had been out of business for many years. He said a
credit check is beneficial for citizens and businesses. He urged
members to support the bill.
MS. MARIE DARLIN, coordinator of the Capital City Task Force for
AARP, said AARP members have been interested in this legislation
since it was introduced because many older citizens have
problems with their credit reports. This legislation will
provide an opportunity to urge people to get their credit
checked. She asked if there is any way to put AARP members on a
"do not call" list regarding solicitations.
CHAIR SEEKINS said AARP would have to research that question.
MS. DARLIN said that AARP supports SB 64.
SENATOR THERRIAULT said he does not believe this will have an
impact on whether a person would be able to block unsolicited
phone calls selling that service. They would probably receive
solicitations in the mail.
SENATOR ELLIS pointed out that Ms. Darlin was referencing
another piece of legislation that addresses the "do not call"
issue.
CHAIR SEEKINS encouraged Ms. Darlin to inform people that the
marketing aspect will come into play if this bill passes. There
being no one else wishing to testify, he closed public
testimony.
2:10 p.m.
SENATOR OGAN expressed concern that SB 64 is an unfunded mandate
on private business.
CHAIR SEEKINS said he investigated that question and found that
the credit reporting agencies do not have any problem with this
legislation because they see it as a marketing opportunity to
try to get people to purchase regular reporting services.
SENATOR FRENCH said federal law requires free credit reports to
people who have been unemployed for a certain length of time, if
there has been a denial of credit or if other specific actions
might arise to question the status of one's credit. Many states
have taken the next step to mandate that consumers be given one
free check per year, primarily because of the enormous power
these companies have over people in the realm of credit
granting.
CHAIR SEEKINS said the influence of incorrect information on
one's credit report can be very negative.
SENATOR ELLIS said this legislation seems like a win-win
situation for everyone. If this required Alaskan businesses to
pay for something to help out consumers, he would be concerned
about it being an unfunded mandate.
CHAIR SEEKINS said he came to that same conclusion.
SENATOR OGAN said if the three credit-reporting companies think
it is a great thing, he would like to hear from them.
CHAIR SEEKINS said they are international companies. Right now,
a person can get a credit report on the Internet at no cost, but
those companies can then solicit that person for other services.
This bill basically codifies something those companies are
already doing on their own websites.
SENATOR OGAN asked if this legislation allows those companies to
market Alaskan consumers.
CHAIR SEEKINS said the Legislature cannot stop them without more
legislation. He said he does not like to force anyone to do
something by law unless there is an overriding public purpose.
He is willing to give this legislation the benefit of that
doubt.
SENATOR THERRIAULT moved CSSB 64(JUD) from committee with
individual recommendations and the attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried. He then announced a brief at-ease.
SB 155-PREDATOR CONTROL PROGRAMS
CHAIR SEEKINS announced a proposed committee substitute (CS),
version S, to be before the committee.
SENATOR THERRIAULT moved to adopt version S (4/16/03) SB 155
as the working document.
SENATOR ELLIS objected for the purpose of an explanation of the
changes.
CHAIR SEEKINS said the changes in version S are primarily
semantic changes for the sake of efficiency. One paragraph is
added that says when the Board of Game authorizes a predator
control program it should establish predator reduction
objectives and limits, methods and means to be employed, who is
authorized to participate, and conditions for participation. He
noted he is still working with the Alaska Department of Fish and
Game (ADF&G) on how to properly delineate responsibilities. The
bill goes to the Senate Resources Committee so that issue will
probably be resolved there.
SENATOR ELLIS asked if the intent of Section 2 on page 2,
particularly the words "methods and means to be employed," is to
allow the Governor's ability to prohibit the use of helicopters
to be overridden.
CHAIR SEEKINS said it is not; methods and means are statutorily
assigned to the Board of Game. The language in Section 2 is a
reiteration of a truism that already exists in the statutes. The
Board of Game could do that now for private individuals or for
permittees. It cannot compel ADF&G to use helicopters, gun ships
and gunners. It does not change that separation of power.
Section (a) of the original statute says the Board of Game can
do these things; section (b) says ADF&G can do these things so
it does not touch any of the department's authority.
SENATOR ELLIS asked if the Governor had the authority to tell
the board that helicopters could not be used.
CHAIR SEEKINS said, as he understood the Governor's conversation
with the board, the Governor said no state helicopters and no
ADF&G gunners could be used. He asked a representative from
ADF&G to elaborate.
MR. MATT ROBUS, Division of Wildlife Conservation, ADF&G, told
members he attended the March Board of Game meeting and
participated in the process as the board came forward with its
findings and request to the commissioner. He asked for
clarification of the chair's question.
CHAIR SEEKINS asked, "Does this, in any way, trump the
Governor's statement that he is not going to use helicopters and
gunners?"
MR. ROBUS said his understanding, based on discussions with the
Department of Law (DOL) and the committee, is that the
commissioner still retains the authority to decide what ADF&G
will or will not implement.
CHAIR SEEKINS said he understands the Governor to mean that his
desire is that the methods and means employed by public people
to be at the authorization of the Board of Game, not ADF&G.
SENATOR ELLIS asked if by "public people," Chair Seekins means
members of the public.
CHAIR SEEKINS said he means private individuals, not public
officials. If someone was going to carry out an aerial shooting
in a predator control program, the Board of Game would authorize
those private individuals to do so, but it could not compel the
state to do so.
SENATOR ELLIS asked why Section 2 is necessary if it doesn't
change the status quo.
CHAIR SEEKINS said it is a reiteration of the existing statutes.
It is somewhat unnecessary, but is meant to clarify. He asked
Mr. Robus if he agrees.
MR. ROBUS said he only had a few minutes to review the working
document. He appreciates the change at the beginning of the bill
because that is a better way to state the committee's intent. He
said he also appreciates the re-inclusion of wolverine because
of their vulnerability to same-day airborne hunting.
In Section 2, he expressed concern that it still potentially
sets up a confrontational situation in that ADF&G believes the
board already has those powers. If the board develops a
particularly narrow program, it would give the administration
very little flexibility in determining whether ADF&G will
participate.
CHAIR SEEKINS said his intent is to work with the chair of the
Senate Resources Committee and members of the department to
define that there is no way the board can force the department
to participate. At the same time, there should be no way for the
department to make it more difficult for the board to carry out
its program.
SENATOR OGAN commented, "This is kind of like the secretary who
will disavow any of your actions if you're caught kind of
thing."
CHAIR SEEKINS said it is not the intent of this bill to force
the board to do anything. If ADF&G does not do it, the
Legislature can address the department's budget. However, there
is a separation of powers in the Administrative Code. He does
not want to cross that line. At the same time, he wants to make
sure the administration does not have the ability to negate the
efforts of the Board of Game to carry out its program.
SENATOR OGAN pointed out that with regard to the separation of
powers issue, the Board of Game is almost an extension of the
legislative branch because the Legislature delegates its
authority to the board.
CHAIR SEEKINS maintained that the Legislature, as trustee of the
resource, has delegated certain authority to the Board of Game.
The board should be working cooperatively with ADF&G. The
Legislature might anticipate that ADF&G would assist to some
degree and provide administrative support if the Board of Game
authorized an airborne hunting program. He expressed concern
that the board should not be able to issue an order that says
that those who are authorized to participate in this program are
members of ADF&G and they must use helicopters.
MR. ROBUS agreed that reflects one of ADF&G's major concerns.
CHAIR SEEKINS said, in effect, the board will still be allowed
to make that decision but ADF&G would not be forced to be part
of the program except for administrative participation.
SENATOR OGAN asked Mr. Robus if he envisions that ADF&G will
give biological advice to the board, but ADF&G employees would
not fly in planes and shoot.
MR. ROBUS said version S requires ADF&G to present the
information upon which this program is based, so ADF&G would be
involved there. As the board recognized in the finding for Unit
19D in March, predator management issues can be addressed in
different ways. Some involve department participation while some
do not. Version S seems to allow the board to come out with a
very narrow program, in terms of saying exactly how it could be
done, and there may be times when that conflicts with the
administration's desires. That's the conversation he had [with
the chair] about where the board's authority to direct ADF&G or
recommend to ADF&G intersects with the department's authority to
participate or not participate.
CHAIR SEEKINS added:
And the accompanying concern that the department
doesn't say, well, you have to get a permit to be able
to do this and the permits are in Barrow and the hunt
is in McGrath. There's some responsibility on all
parts there to be cooperative but yet not to cross the
lines of individual powers.
SENATOR OGAN asked if anything in current state law prevents a
predator control program that involves use of helicopters to
identify dens or areas where predators center. He said he has
spoken with a professional predator regulator for the federal
government who suggested using helicopters for such a purpose.
MR. ROBUS said the general answer is no and unless the person is
carrying a collection permit or some sort of authorization, the
person can not harass or even disturb an animal because that
would fit the definition of "taking." An ADF&G employee doing a
survey with a permit is legal. If a private person does that,
the person could cross the line from observation to disturbance,
which becomes a legal problem.
SENATOR OGAN asked if anything prevents ADF&G staff from getting
permits, locating dens, and then using helicopters to drop
people off to hunt the next day. He said he is looking for
alternatives.
MR. ROBUS said if hunting is involved, helicopters cannot be
used to transport hunters or their gear or game. If the activity
is something other than hunting, possibly an approved predation
control program, something like that could occur.
SENATOR THERRIAULT asked if under the existing statute,
individual Alaskans could participate in a predator control
program that includes same-day airborne or shooting from planes.
MR. ROBUS said that is correct according to his discussions with
the Department of Law.
CHAIR SEEKINS said version S says the board can use more than
just the prey population objective to be able to do that. The
board can also use harvest or population objectives for prey or
predator in an area determined to be an intensive management
area.
SENATOR THERRIAULT said the bill now contains language that says
the board will assert control over how that is to be done. He
maintains that this legislation will not undo the public
initiative.
CHAIR SEEKINS agreed and said it clarifies how it can be used.
He noted that, hopefully, Section 2 brings some portions of
existing statute into focus so that the state isn't turning
everybody with a Super Cub and a shotgun lose to kill wolves.
SENATOR ELLIS asked about the term "free ranging wolf."
CHAIR SEEKINS said that free ranging means it is not trapped or
confined somehow.
MR. ROBUS acknowledged that is correct.
SENATOR ELLIS asked Mr. Robus if he supports the inclusion of
wolves and wolverines on the list and whether they are included
because those two species are killing moose calves.
MR. ROBUS said he does not want to give the impression that
bears are not involved in some areas. He commented favorably
about including wolverines in version S because they were
removed from the previous committee substitute. Staff pointed
out to him that wolverine, being solitary, having a low
reproductive rate and using open country, could be very
vulnerable to same day airborne land and shoot practices.
Because the first sentence of this statute says certain species
may not be hunted, it makes sense to include wolverine. He said
the fact that wolves are included is due to the initiative that
originally established the statute. However, everything else in
the bill says in a predation control situation, wolves may be
taken in specific ways. He pointed out that lynx are not often
found in country where they would be susceptible to same day
airborne shooting and fox have a higher reproductive rate.
CHAIR SEEKINS said he would be hard pressed to find any
advantage in using same day airborne hunting to get a fox or
lynx. However, wolverines could be more susceptible.
SENATOR ELLIS asked, "And what's your take on the bears?"
CHAIR SEEKINS said they are covered under different statutes.
SENATOR ELLIS asked if he intends to address that statute.
CHAIR SEEKINS said he intends to look at it at some point and is
currently talking to members of the trapping, hunting and
guiding industries and ADF&G about how to control bears.
SENATOR ELLIS asked if bears are on the list.
CHAIR SEEKINS said he thinks they should be, but not in all
areas.
SENATOR FRENCH said most of his constituents think that any
airborne wolf hunting is banned. The tenor of their comments is
that they want this to be as tightly regulated as possible. They
do not want one inch of leeway to make it easier to do predator
control from the air or using same day land and shoot. He said
from a political perspective, he sees the Governor saying that
he will not allow department staff to participate in predator
control using helicopters, but what he sees coming is the least
attractive alternative to his constituents.
TAPE 03-25, SIDE A
2:43 p.m.
CHAIR SEEKINS said Senator French's comment shows a widening of
the rural-urban split. He said that people from downtown
Anchorage and those from a rural community will be at odds on
this issue. If Senator French's constituents want to widen the
rural-urban split, this issue provides an opportunity to do so.
He said that members of Senator French's party are supportive of
this legislation because they are unable to put moose on their
tables because of predators. If people in downtown Anchorage do
not believe that is a real problem, they should talk to some of
those folks in the rural areas. He said the rural populations of
moose have declined and, because of ineffective predator control
in some areas close to urban populations, urban hunters are
hunting in the rural areas. He pointed out that the moose
population in Unit 13 has dropped from 27,000 to less than
8,000. The wolf populations are huge in that area. As a result,
urban hunters who used to hunt in Unit 13 are now going to the
rural areas. That is exacerbating the urban rural tension. They
would not travel to rural areas if they had a reasonable
opportunity to harvest close to home. The Governor said he wants
the local people to take care of predator control rather than
ADF&G employees. This bill will authorize local people to do
what the Governor wants to have done; it does not set up an
adverse position to the Governor's. It allows the Board of Game
to make that decision in concert with the Governor's desired
methods.
SENATOR THERRIAULT told Senator French this bill is a step in
the direction that his constituents want to go. They think
airborne hunting is absolutely outlawed: it is not. They believe
this legislation undoes the initiative: it does not. Legislators
have to educate them. He directed the woman he corresponded with
to the sections of statute to show her that this will put some
controls on a process she says she does not like. He questioned
whether she would rather have no controls. Constituents need to
understand this is a step in the right direction.
SENATOR FRENCH said it strikes him that if the issue is the
declining moose population criteria already exists in the
current statute. The first go around on this issue centered on
increasing the number of variables the board could contemplate
when considering airborne predator control. He said the real
issue is that the Board of Game did not set the population
figures appropriately. It was suggested that the moose
population could be maintained at a low level but, because of
the rise in the predator population, it would crash. He said he
was not convinced of that because he believes the game
population must be set with a large enough buffer to take
predation into account. He questioned how this bill would change
that.
CHAIR SEEKINS replied:
...you may have a population objective in a particular
area and you're maintaining that population objective
but, because of predation, you have no harvest
objective that you can look for in being able to
maintain that population objective. So you're cutting
back on the size that can be taken. You're removing
non-resident hunters from the equation. You're doing
other things that can help you maintain the population
objective but you now are not able to meet a harvest
objective. So this would give you the opportunity to
eliminate the competition to be able to meet a harvest
objective. Am I correct there?
MR. ROBUS said another way to say it is that, under the current
system, the board has only one trip wire that enables it to set
up a predation control program - that is if an ungulate
population identified for intensive management descends through
its population objective. If an ungulate population is above its
population objective, but for various reasons is in a downward
trajectory, this flexibility to choose several objectives from
which to work should allow the board to take some corrective
measure to try to recover the population to the lower limit. He
said it is important that this is only tied to intensive
management populations of ungulates that have been identified as
very important for high levels of human use. He said the March
meeting of the board demonstrated that, when decisions must be
based on a single objective, wildlife management gets very
complicated. Giving the board flexibility to look at other
objectives makes sense because other factors affect those
ungulate populations.
SENATOR OGAN commented that he hunted moose in Unit 13 for a
number of years, but he quit 10 years ago because the herd he
was hunting had 20 to 30 cows and not one calf. He could tell
back then that the population was in trouble.
SENATOR THERRIAULT moved CSSB 155(JUD) from committee with
individual recommendations and the attached zero fiscal note.
SENATOR ELLIS objected.
CHAIR SEEKINS called for a roll call vote. The motion to move
the bill from committee passed with Senators Therriault, Ogan
and Seekins voting in favor, and Senators French and Ellis
opposed.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 2:58 p.m.
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