Legislature(2007 - 2008)BARNES 124
02/13/2008 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HJR31 | |
| HB348 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 31 | TELECONFERENCED | |
| *+ | HB 348 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 348-BOARD OF GAME REGULATIONS 1:58:15 PM CO-CHAIR GATTO announced that the next order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 348, "An Act relating to the adoption of regulations by the Board of Game." CO-CHAIR JOHNSON moved to [place] SSHB 348 [before the committee]. There being no objection, it was so ordered. 1:59:26 PM REPRESENTATIVE WES KELLER, Alaska State Legislature, speaking as the sponsor of HB 348, stated that Alaska's wildlife managers are trained professionals who consult with the Board of Game and the public to ensure an abundant wildlife resource. For more than 10 years there has been repeated outside attacks on Alaska's knowledge, and these attacks are money raising schemes having nothing to do with science, he charged. The Lower 48 needs to get the message that people in Alaska understand wildlife management and are doing a good job. Wildlife is a valuable asset that generates income for Alaska through viewing, hunting, and guiding. He said SSHB 348 sends a message by codifying Alaska Supreme Court language that calls game an asset. The bill clarifies that Board of Game regulations adjusting the methods, means, seasons, and bag limits are all allocative in nature. He acknowledged that SSHB 348 may result in more work for the Board of Game but asserted that this is good management. The bill brings Alaska's constitutional language into statute by adding the term preferential use. Using supreme court and constitutional language in statute provides a rich context for clarifying the intent of Alaska's Board of Game, he opined. This bill and HJR 31 go together to show Alaska's negative reaction to Congressman George Miller's bill, H.R. 3663. 2:03:22 PM CO-CHAIR GATTO asked whether Mr. Saxby can address constitutional questions about a statute. KEVIN SAXBY, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law (DOL), responded that it depends on the question. CO-CHAIR GATTO opened public testimony on SSHB 348. 2:04:11 PM ROD ARNO, Executive Director, Alaska Outdoor Council, testified that his organization wholeheartedly supports SSHB 348. Changing Title 16 by adding "asset of game" would be of value to all Alaskans who use that wild food source, he said. REPRESENTATIVE GUTTENBERG inquired why the change of language would be so important. MR. ARNO replied he clearly sees the reason from discussions with the Division of Habitat over the past year. Alaska has clear parameters for protecting fish habitat and fish streams, he said, but there are few parameters for uplands. For example, the value of the Nelchina caribou herd could be quantified as an asset to the 7,000 Alaskans who annually apply for that permit. If an open pit mine was proposed for the uplands used by the Nelchina caribou herd, the value of that caribou resource could be considered during the permitting process. REPRESENTATIVE GUTTENBERG asked why calling [game] an asset changes their function and how they are dealt with. MR. ARNO answered he is a hunting guide not a lawyer, but his understanding is that if game are considered an asset lawsuits could then be brought for civil damages. 2:06:37 PM CO-CHAIR GATTO inquired what Title 16 is. MR. ARNO stated Title 16 is the fish and game code. CO-CHAIR GATTO said he wants to make sure what the bill proposes to do is legal. REPRESENTATIVE EDGMON requested the Department of Law to address how SSHB 348 merges with HB 256 in terms of harvestable surplus and higher levels of human consumption. 2:07:44 PM CO-CHAIR GATTO reiterated his question about what Title 16 is. MR. SAXBY responded that Title 16 is the fish and game code. In further response to Co-Chair Gatto, Mr. Saxby said he drafted HB 256 and he is the senior assistant attorney general assigned to game issues. CO-CHAIR GATTO expressed his concern that using the word asset might be a constitutional issue. MR. SAXBY agreed. The wrong statute is being used to address the issue, he said. 2:09:13 PM MR. SAXBY began his testimony with the disclaimer that his personal view is closely aligned with that of the sponsor, but that he is charged with giving the most objective legal analysis that he can. He said the Department of Law's testimony is page 2 of the fiscal note submitted by the department. He specified: SSHB 348 was written for the purpose of emphasizing, in statute, the allocative nature of many game regulation decisions, so that such decisions would not be subjected to the whims of political change through the initiative process. Unfortunately, the way the bill is worded, it could easily be interpreted - and I actually think it will be interpreted - as serving primarily to limit the Board of Game's ability to exercise many of its most important powers to only those situations in which the regulations are being done "as a means to allocate the asset of game." Because of this danger, the board would be forced to build a record for every regulation during its meetings which illustrates how the board is allocating game through that regulation. This would likely add several days to each major board meeting, with resulting costs, and to more legal arguments and challenges regarding whether, and how, the board is allocating, also with resulting costs. And perhaps I can illustrate it this way. The underlying purpose of [SSHB 348] is to affect what the public can or cannot do vis-à-vis the initiative process. But what the bill actually does is say what the Board of Game can or cannot do.... It ... effectively limits many of the board's most important powers to only those situations where the board is able to show that it is in fact allocating game. ... That raises a real potential conflict with the board's enabling statute, AS 16.05.221(b), which says, "For purposes of the conservation and development of the game resources of the state, there is created a Board of Game ...." So the board is created for the purpose of not just developing, allocating, but also for adopting regulations that are related to a conservation rationale. So, that ... is the effect that we see with the current language in the bill. 2:12:10 PM CO-CHAIR JOHNSON inquired how the goal can be accomplished without handcuffing the Board of Game. MR. SAXBY replied the more direct route would be to directly say what the public can or cannot do rather than say what the board can or cannot do. He said he cannot come up with a specific amendment right now, but offered to approach the governor's office and the ADF&G commissioner about tasking him with that job if it is the committee's desire. CO-CHAIR JOHNSON said he cannot speak for the committee, but as an individual representative he would like Mr. Saxby to do so. REPRESENTATIVE SEATON stated no. 2:13:19 PM REPRESENTATIVE KAWASAKI noted that the term asset is referenced in the finance section of the index of the statutes. If game is considered an asset, does that mean it can be sold and traded, he asked. MR. SAXBY understood the sponsor's purpose in using the term asset in SSHB 348 is to come within some of the language that the Alaska Supreme Court has already issued, especially in the Pullen v. Ulmer case. There was an initiative that would have directly allocated up to five percent of escapement, essentially harvestable surplus, of salmon to sport and personal use fishing. The [Alaska] Supreme Court ruled that was an improper subject for the initiative process under the constitutional language governing initiatives. Thus, the initiative was not allowed to proceed to the ballot because it was a direct allocation of a state asset - fish were an asset. He said he thought it could be deduced from that ruling that game is likewise an asset. So, in some circumstances, an attempt to allocate game through the initiative process would run afoul of that supreme court case. He understood that SSHB 348 is an attempt to create that situation generally. 2:15:06 PM REPRESENTATIVE SEATON said a 2/5/08 legal opinion from Brian Kane, Legislative Counsel, Legislative Legal and Research Services identifies the same problem noted by Mr. Saxby. [The opinion addresses the question, "What does SSHB 348 do, and how would this bill change the legislature's constitutional mandate to manage fish and game resources?"] He read the second to last paragraph of the opinion which states (original punctuation provided): The main effect of these changes could be that the Board of Game is limited in the reasons for which it can adopt regulations under AS 16.05.255(a)(2), (a)(3), or (a)(4). Under the added language, it is possible that "to allocate the asset of game" would be the only reason the board could have for adopting regulations to carry out the provisions of AS 16.05.255(a)(2), (a)(3), or (a)(4). 2:16:36 PM REPRESENTATIVE GUTTENBERG observed that fish are sold and bartered and asked whether there could be a domino effect on Alaska's game laws. Additionally, he asked, would this turn over the legislature's fiscal responsibilities to the Board of Game, creating a separation of powers issue. MR. SAXBY answered the second question first. He said there is a difference between money and an asset, and there is probably enough discussion in the Pullen case to be able to draw that distinction. He cited two reasons for why he does not think there would be a problem of running afoul of separation of powers issues: 1) assets do not necessarily include just money, they include state property such as computers and other things; 2) Article 8 of the constitution gives the legislature the authority to regulate the state's natural resources. The legislature has delegated that authority to the Board of Game and the board cannot exceed the legislature's guidelines and directives. Regarding the first question about the domino effect, Mr. Saxby stated that both he and legislative counsel Brian Kane are saying there is a potential domino effect the committee should be aware of should SSHB 348 pass as worded. 2:19:07 PM REPRESENTATIVE SEATON directed attention to a 2/11/08 legal opinion from Mr. Kane addressing the question, "Would SSHB 348 prohibit citizens' initiatives that restrict predator control programs by restricting greatly or prohibiting outright the same day airborne shooting of wolves?" He read a portion of paragraph 2 in the opinion, which states [original punctuation provided]: I do not think that the additions to AS 16.05.255(a) by the bill will necessarily prohibit a citizens' initiative regarding predator control or the same day airborne shooting of wolves. As I stated in my February 8 memo to your office, the court will examine the provisions of the state constitution without being required to look at any statutory sections that might relate to those constitutional provisions. The court will look at the constitutional provision in question and make its own determination based on that provision alone. REPRESENTATIVE SEATON thus advised that SSHB 348, as currently worded, would not accomplish its goal and could potentially have severe consequences to the operation of the Board of Game. 2:20:39 PM REPRESENTATIVE GUTTENBERG cited a 2/13/08 legal opinion from Mr. Kane responding to the question of, "How does the court's view of an allocation of an asset factor into the prohibition of a citizens' initiative in relation to an appropriation?" The crux of SSHB 348, he said, is that it will make it a lot harder to get through a ballot initiative regarding game management. He read the second to last paragraph on page 2 of the opinion which states [original punctuation provided]: Based on the court ruling in Pullen, the court would likely consider that an allocation of what it considers a state asset could not be allowed as an appropriation in a voter initiative. REPRESENTATIVE SEATON said there is a distinction between Pullen v. Ulmer and SSHB 348. Pullen v. Ulmer is about the allocation of an asset between citizens of the state or groups of the state. However, SSHB 348 would ban an initiative that would prevent predator control, which is not an allocation between different groups of citizens of the state. Thus, he said, the committee needs to ensure that the action it takes will actually accomplish the intended goal. REPRESENTATIVE GUTTENBERG asked Mr. Saxby what Mr. Arno was talking about when he stated that calling game an asset would provide the ability to sue for damages. MR. SAXBY responded he would be guessing. 2:23:26 PM CO-CHAIR JOHNSON suggested a broader look be taken at this than just aerial wolf hunting because it could include fishing, fur trapping, and other things. He said if SSHB 348 was a piece of legislation intended to stop a particular initiative, then he would have trouble with it. However, he said he sees the bill as an attempt to use the state's professionals to manage Alaska's game rather than the emotional outcry of outside groups. While one of the consequences may, in fact, be the wolf hunting initiative, he said he would hate to see the committee get wrapped around that topic when the real issue is to stop managing game and biology at the ballot box. 2:24:47 PM SCOTT OGAN, President, Sportsmen for Fish and Wildlife (SFW), pointed out that he is testifying on his own time and his comments do not represent his employer, the Department of Natural Resources, State of Alaska. He said Sportsmen for Fish and Wildlife was founded with one main objective - to enable the Alaska Department of Fish & Game and the State of Alaska to manage for abundance. He maintained that SSHB 348 does not change existing laws on initiatives. It returns control of Alaska's game management to the preferential use of Alaskans, by Alaskans, for Alaskans, without the influence of outside special interests, as prescribed in Alaska's constitution. "The Alaska Department of Fish & Game would be allowed to manage game as an asset rather than managing people by unnecessarily limiting or cutting off seasons and bag limits", he stated. The department could establish scientific rather than political goals for predator-prey relations to manage for maximum sustained yield as prescribed in the constitution. MR. OGAN cited Utah's management system of predator-prey relationship which stopped the mortality of young ungulates from cougars and resulted in the flourishing of that state's wildlife. Utah amended its constitution to require a two-thirds vote to pass wildlife initiatives, he related. He noted that when he was a member of the Alaska State Legislature, he opposed giving priority for fish and game to one group of people based on where they lived. However, he is now sitting on a board with a person with whom he previously disagreed and the two of them have put that issue aside to agree on the concept of SSHB 348. Alaskans have been divided and conquered long enough, he opined, and urban and rural Alaskans must unite and stand together against outsiders who are trying to run Alaska through the initiative process. The Alaska Supreme Court has spoken that fish are an asset of the state and not subject to an initiative. This bill would bring game up to the same level of recognition as fish, he said. CO-CHAIR GATTO closed public testimony. 2:30:33 PM REPRESENTATIVE EDGMON inquired what the net effect would be if HB 256, SSHB 348, and the 2008 Aerial Wolf Ballot Initiative all became law. MR. SAXBY replied that the underlying motives of HB 256 and SSHB 348 are similar - to manage for abundance and thereby reduce conflict. He said HB 256 is an effort to simplify and clarify the current laws and make them as workable as possible. He noted that each time a same day airborne law has been passed by the citizens, the legislature has had to act to simplify it and make it workable, and HB 256 would provide ways to make it even more workable. He said he views SSHB 348 as an attempt to ensure that game is treated as an asset and that regulation of game is viewed as allocation of assets. He said he thinks SSHB 348 will be unsuccessful and will result in more legal challenges, eventually serving to limit the Board of Game's powers rather than to make its decisions more defensible. [If HB 256] and the 2008 initiative pass, he said, the state will have a mandate to conduct active management for important game populations, which in some instances translates into a mandate to kill wolves, along with another law that makes it extremely difficult to kill wolves. REPRESENTATIVE EDGMON agreed the state will have a mess on its hands if both HB 256 and the 2008 initiative become law. 2:34:31 PM REPRESENTATIVE SEATON asked how classifying game as an asset will preclude mining operations in Alaska. MR. SAXBY explained that game is already considered an asset under current law, just like fish is considered an asset. The dispute is over whether a given initiative is actually allocating an asset, he said. In Pullen v. Ulmer the court held that - in that case - the initiative was a direct allocation of a state asset. Regardless of whether or not SSHB 348 passes, that will be the test the court will look at should people choose to make that argument in the future. As to how classifying game as an asset might affect mining and other resource uses in the state, he said he believes it is the desire of some groups to see more recognition of game as an important asset when the commissioner of the Department of Natural Resources is calculating a best interest finding for proposed resource development activities in the state. Thus, explicit legislative recognition of game as an asset will carry a bit more weight in some cases when these best interest findings are being made. 2:37:20 PM REPRESENTATIVE SEATON inquired whether this would relate only to the agency process of balancing a best interest finding or would it promote a legal challenge to the utilization of mining as an asset versus the statutory designation of game as an asset. MR. SAXBY answered he is unsure he fully understands the question. But, he said, having defended the state against challenges by environmental groups for a number of decades, he knows that any hook or argument available to an opponent of a particular development project will be used. If there is an argument that can be made based on legislative language that seems to add weight to an opponent's side of things, it certainly will be used at some point. 2:39:04 PM CO-CHAIR GATTO said he is holding SSHB 348 so the sponsor can work with Mr. Saxby and others to come up with something that does not give the committee pause as far as constitutionality. REPRESENTATIVE GUTTENBERG asked when HJR 31 is needed to meet the congressional timeline. REPRESENTATIVE KELLER said he did not know [the congressional timeline]. MR. POUND stated that Congressman Young would like to have the resolution as soon as possible. 2:41:52 PM CO-CHAIR GATTO reopened public testimony due to an error on the witness signup sheets. ROBERT FITHIAN, Executive Director, Alaska Professional Hunters Association (APHA), stated that his organization supports SSHB 348 because it will protect and conserve Alaska's wildlife resources, bridge the urban/rural divide, and create sound and sustainable economy throughout rural Alaska. Alaska's stewardship failure due to ballot initiatives will rate in the top five of all historical wildlife conservation failures in North America's history, he said. This bill will facilitate an ending of this situation and allow the Alaska Department of Fish & Game to do its job as mandated by state constitution. He said APHA believes it is important to understand that Alaska's founding fathers had no knowledge and little foresight of the political arena into which the state would eventually be cast to effectively manage its wildlife as per their constitutional requirements. This bill would secure their work and provide for the best interests of the whole of Alaska and not special interests. MR. FITHIAN noted that the long-term sustainability of the over $200 million a year guide industry is dependent upon allocation of sustainable harvestable surpluses, and SSHB 348 will help generate this important requirement. He urged the committee to work together to accomplish the bill's goals, even if it means new language to resolve the Department of Law's concerns. He related that APHA's counsel, Bill Horn, has advised that the repeated references to fish and wildlife as assets is designed to prevent any fish and game oriented ballot initiatives. If fish and wildlife are assets they cannot be allocated by an initiative, which is good. Just as importantly, SSHB 348 does not impact the state's ability to allocate these resources among users, including providing preferential uses. Guide required rules and other plans to facilitate guided hunting and fishing likely fall within the scope of preferential uses. He noted that the one concern cited by Mr. Horn has been brought to the attention of the sponsor's staff. 2:45:48 PM CO-CHAIR GATTO inquired whether Mr. Fithian objects to the state having an initiative process. MR. FITHIAN responded no. In further response to Co-Chair Gatto, Mr. Fithian agreed that the initiative process belongs and is valuable. CO-CHAIR GATTO pointed out that the cruise ship tax and the 90 day legislative session are both the result of initiatives, and a failed initiative is the reason why the state does not have a reserves tax. However, he said, there cannot be initiatives that reappropriate or appropriate assets, especially money, because otherwise all the biggest cities would have all the projects. Thus, there are strong restrictions on what an initiative can do. The question is going to become whether the term asset will have to be defined in a very specific way, but right now, there may be a constitutional issue. 2:46:55 PM MR. FITHIAN commented that that there is very little ability for the legislative body or the lieutenant governor's office to prohibit the initiative process. The initiative process is a method of fundraising for outside interests that care little about the effect of their actions on the state as a whole, he said. If SSHB 348 can be constructed to benefit the whole, then it starts to give some of the stewardship provisions that are needed. CO-CHAIR GATTO agreed and said he would like the Alaska Department of Fish & Game to be the scientists and the managers. [SSHB 348 was held over.]
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