Legislature(1993 - 1994)
03/25/1994 08:15 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 067
HB 443 - Fish & Wildlife Confidential Records
WAYNE REGELIN, DEPUTY DIRECTOR, DIVISION OF WILDLIFE
CONSERVATION, ALASKA DEPARTMENT OF FISH AND GAME (ADF&G),
stated HB 443 addresses the confidentiality of radio
frequencies and a few other types of information ADF&G feels
should remain confidential. ADF&G has routinely radio
collared many different animals for research and management
purposes since the mid-1970s and this information has always
remained confidential. He said at the request of ADF&G, the
confidentiality requirement was put into regulation by the
Board of Game in 1986 because tourist companies were wanting
to use ADF&G's radio frequencies for flight seeing. In
1990, the legislature revised the confidentiality statutes
throughout most departments. At that time, ADF&G asked the
legislature to add an amendment to ensure the continued
confidentiality of radio frequency information and the
legislature did so.
MR. REGELIN stated when that change was made, wording was
added saying the department shall keep information
confidential when the knowledge may be detrimental to the
fish and wildlife population. ADF&G did not realize the
wording was a problem until the department was sued in the
summer of 1993 for refusing to release radio frequency
information to an individual wishing to track radio collared
wolves. ADF&G was required by a court order to release the
information because the department could not prove that the
information would be detrimental to the population. It
might have been detrimental to the individual animals, but
not to the population. He stressed it would be nearly
impossible to ever prove a population detriment because only
a few animals are collared at one time. He said even death
to those few animals would not hurt the population.
MR. REGELIN explained ADF&G is requesting, through HB 443,
that those words be removed so ADF&G will not have to
provide that proof. He said HB 443 will also add another
section allowing the department to keep specific locations
of animal capture sites for wildlife research or management
confidential. The department currently has a request, under
the Public Records Act, for all locations of traps and
snares used in ground based wolf control operation south of
Fairbanks. The request asks for the exact locations of
where the department sets each trap. He stressed the
department believes it is in the state's best interest and
essential for good wildlife management to keep the radio
frequencies and trap locations confidential.
Number 112
MR. REGELIN said ADF&G feels if the department is required
to release this information, it may compromise some of the
department's studies because animals might be removed or
displaced, altering their behavior. ADF&G feels the release
of information might lead to the disturbance of sensitive
locations such as den sites. ADF&G believes the information
could be used to facilitate harassment of the department's
research and management programs by individuals and
organizations who oppose them. ADF&G feels the information
could also lead to increased vulnerability of the animals
and associated animals for unethical people to get the radio
frequencies and use them for hunting.
MR. REGELIN stated another change which ADF&G recommends is
that words be added allowing the release of the information,
if the requestor is under contract with the state to conduct
research. This provision will allow the department to
cooperate on projects with researchers, private consultants,
etc., where the research is mutually beneficial to everyone
involved. He pointed out that in all other states he is
aware of, this kind of radio frequency information and
specific locations are kept confidential. He added that
federal agencies like the Fish and Wildlife Service and the
National Park Service also keep this information
confidential.
MR. REGELIN said the individual who received ADF&G's radio
frequencies under court order, also requested frequencies
from the National Park Service but was denied because
federal laws are more strict. He stated ADF&G is not saying
that no other agency, organization, or individual should be
allowed to conduct wildlife research on radio collared
animals. He noted federal agencies, such as the National
Park Service, routinely put on collars and often work
cooperatively with ADF&G and in doing this, they do so under
a permit from ADF&G. He explained consulting firms are also
allowed to put their own radio collars on under a permit
received from ADF&G. HB 443 will leave that decision up to
the discretion of the commissioner in entering for
cooperative agreement, if the agreement is in the best
interest of the state. He stated in most cases it is in the
best interest of the state to work with other groups and
organizations to share costs, funding, and work together.
ADF&G does that routinely with a wide number of people and
universities throughout the country. He said ADF&G does so
with almost anyone who has scientific credibility.
Number 159
MR. REGELIN stated HB 443 will not change the department's
obligation to provide information to the public about
ongoing activities. ADF&G routinely provides summary
information on almost all ongoing department activities and
also provides great detail of the department's information
when requested. For example, on the department's wolf
control program, ADF&G has provided the Alaska Wildlife
Alliance and other people, information on all of the costs,
biological information, etc. He stressed what ADF&G has not
given out is the exact locations of where every trap is set.
The department has given out maps indicating the traps are
within a certain zone, and informing them the exact
locations will be given once the trapping season has ended.
MR. REGELIN noted there had been discussions with several
people in the House and Senate asking ADF&G to offer an
amendment. He said the amendment will provide additional
flexibility for the commissioner. On page 2, line 2, of HB
443 the amendment will insert "if the requestor has been
authorized by the department to perform specific activities
and the requestor agrees to use this information only for
purposes as provided under the contractor agreement." He
explained the reason for the amendment is ADF&G does not
want to be, by law, not able to cooperate with someone, such
as people making a wildlife film, where it would be to the
state's advantage to produce a good wildlife film. This
amendment will allow that to be done.
Number 201
REPRESENTATIVE FINKELSTEIN said he is confused about HB 443
because there is a court order contained in each member's
packet and the court decision stated the department was not
required to give any information to the plaintiff
organizations. He pointed out that one individual did get
the information, but that individual was ordered not to
release the information to any of the individuals and
organizations who were the plaintiffs. He felt it is clear
that the state succeeded, the current law has achieved the
balance the state wanted and the court went even further and
he explained the authority the state has. He thought the
court order has given the department the power already and
he did not understand what needs to be fixed.
MR. REGELIN responded the standard of proof used by the
judge was the department could not demonstrate a detriment
to the fish or wildlife population. At ADF&G's request, the
judge put in the confidential language. He said ADF&G
remains concerned that a precedent has been set and the
department will not be able to prove, if a flight seer wants
to fly 100 planes a day over wildlife wearing radio collars,
that it is detrimental to the population.
MR. REGELIN added ADF&G currently has two requests from
flight seers which the department has not acted on. He
stressed the issue is broader than just the one individual
who sued the department. ADF&G is concerned that a
precedent has been set and if the department has to release
the information, the next judge may not include the
confidentiality clause. HB 443 will solve the department's
problem. He stated if an individual is contracted with a
group of people who the department feels are beneficial to
cooperate with and work with, the department will try and
work with that individual.
Number 257
REPRESENTATIVE FINKELSTEIN clarified Mr. Regelin had said
the court imposed a burden on the department to show
detriment to the fish and wildlife population. He asked
where that is indicated in the court order.
MR. REGELIN said he listened to the judge and when making
his decision, that was the standard. He thought the
Department of Law would need to explain the court order.
REPRESENTATIVE FINKELSTEIN felt there is no problem in
interpreting the court order. He thought ADF&G probably has
read the court order many times because it is the basis for
interpreting the current law.
REPRESENTATIVE HUDSON felt HB 443 is attempting to avoid
future court determinations and to clearly stipulate what
the department's needs are in law so as to preclude someone
from going to a judge to make a determination. He said
because there is a judge's decision outlining the parameters
in the bill, it makes it easier to have it in the statutes.
Number 395
DR. GORDON HABER, DENALI PARK, testified via teleconference
and stated HB 443 was written by the state directly and is
solely in response to an action he took. He clarified the
state has given internal memos and other materials directed
at him to committee members. He stated HB 443, even with
the proposed amendment, will make it impossible for any
valid scientific research to be conducted on radio collared
animals except by another agency or under ADF&G contract.
He noted that the person under contract will have to be
someone the department feels comfortable with, meaning any
project conducted will be under strict ADF&G control.
DR. HABER pointed out that in June, a Superior Court judge
listened to all ADF&G arguments and all of his, and did so
on a level playing field. After hearing testimony, the
judge awarded the ADF&G radio frequencies to him to allow
him to conduct research, which the judge considered would
contribute significantly to the issue of wolf control. He
said in the order, the judge pointed out that the state had
not challenged his credentials as a scientist and concluded
that the state's arguments to the effect that this decision
would set a precedent and open the flood gate for harm to
the wildlife populations were unfounded. The judge
determined the ADF&G commissioner already has adequate
regulatory permitting authority to preclude that
possibility. He pointed out there has been no indication
yet of any onrush of people seeking the radio collar
frequencies.
DR. HABER said the judge made it very clear in his order
that he or anybody else is forbidden to use the frequencies
for anything but scientific research. He felt there is no
additional protection for radio collared wildlife under HB
443 not already existing in present statute and the
commissioner's existing regulatory permitting authority.
Mr. Haber stressed the only effect HB 443 will have is to
suppress the kind of scientific research he is conducting as
an independent scientist, not under any ADF&G's direct
control; the kind of independent research he felt will be
welcomed by the legislature because the research ensures the
broadest possible information base and serves as a check
against biased, self-serving interpretations which might be
presented by either side in a complex controversial issue of
public policy.
Number 353
DR. HABER commented that ADF&G has already argued that
opponents to its wolf control programs do not have the data
to support their arguments. He pointed out that existing
statute allows opponents, through qualified scientists, to
gather information independently and go to the Board of Game
with the data to make their best arguments. Closing the
opportunity for independent information to be collected will
leave opponents of controversial programs, like wolf
control, with only one alternative and that is a boycott.
Mr. Haber said based on the research he has been doing in
and near the current and recently proposed wolf control
areas, with the aid of the frequencies, he has already been
able to generate several major technical reports.
DR. HABER noted that ADF&G has received several of his
reports and will be receiving more. The reports are
available to anyone who requests them. He said the reports
represent over $100,000 of research he has conducted since
April. He felt the information received from his research
is a bargain for the state as none of the money used to
conduct the research is state money. He stated the results
he has collected thus far represent a different
interpretation than what ADF&G has provided to Alaskans.
For example, his research indicates the moose population in
game management 20-A south of Fairbanks, is almost certainly
past its most productive size presently, where maximum
sustainable harvest for hunters could be derived.
(Indiscernible) wolves as the state is trying to do now
(indiscernible) will increase further through a range of
densities where recruitment and sustainable yields will
continue to decrease which is somewhat self-defeating since
the objective in 20-A is to increase hunting opportunities.
He gave other examples.
Number 399
DR. HABER stated the material which ADF&G has given to
committee members paints him as a wildlife greenie. He
reminded committee members that the judge in his court order
emphasized ADF&G did not challenge his scientific
credentials. He explained he has a Ph.D and Masters Degree
based on management oriented wolf/bear research which he has
been doing for 29 years. He has several technical
publications. He is a permanent resident of game management
area 20-A where wolf control is being carried out. Local
resident there strongly support his efforts.
DR. HABER said the People magazine article clearly defines
what he thinks about the current wolf control program,
although it does not say much about his technical arguments.
He pointed out that contrary to the picture which ADF&G is
trying to paint, he does not oppose wolf control across the
board which can be seen if his technical publications are
read. He stated back in the 1970s when the western Arctic
caribou herd crashed in Northwestern Alaska, he was one of
the strongest supporters and defenders of wolf control in
that case.
DR. HABER stated some of his support has come from
environmental organizations, but ADF&G has not mentioned he
has also received grants from the opposite side. He has
received grants in the past from the National Rifle
Association and the Boone and Crockett Club. He noted he is
currently a member of the National Rifle Association and a
member of the Alaska Outdoor Council.
Number 467
REPRESENTATIVE HUDSON stated it appears Mr. Haber's
testimony is going to be lengthy and there will be
additional questions. He suggested to Chairman Williams
that HB 443 be moved to the bottom of the calendar and allow
the committee to hear HJR 61 which will be fairly
expeditious.
REPRESENTATIVE JAMES asked if there will be enough time for
Mr. Haber to complete his testimony.
MR. HABER said he only wants to comment on the memos which
ADF&G included in committee member's folders. He felt the
memos are relevant because they have implied he has created
major disturbances in the wolf population.
MR. HABER continued in regard to the memo from Mr. Regelin
to Mr. Kelleyhouse and the memo from Mr. Boertje to Mr.
Regelin, it is clear to him that the department is
attempting to imply that having been forced to release the
radio collar frequencies, there has been disruption to the
wolf populations where the radio collared wolves are
located. He stressed that is untrue. He said he has
conducted two major surveys in that area since the survey
Mr. Boertje is referring to in his January 24 memo and has
not seen what is described in that memo. Mr. Haber,
referring to a photograph which he took of one of the radio
collared packs, which was published in the Fairbanks Daily
News and is in committee member's folders, asked committee
members to look at the photograph and determine if there is
even the slightest hint those wolves in any manner were
responding to the aircraft. He gave other examples of
photographs taken which do not indicate any disturbance.
Number 537
MR. HABER stated since he has received the frequencies from
the state, he has been monitoring 21 radio collared wolf
packs. Upon thinking about how many of the wolves have
reacted to his airplane in any kind of significant way, he
can only recall about six cases where wolves responded. He
added the response is usually very brief. In four of those
six cases, the response was usually after the department had
flown over. He stressed if there is any evidence of
disturbance, the overwhelming evidence indicates that the
department is disturbing the wolves. He said there really
is no evidence of widespread disturbances as ADF&G is trying
to imply. Mr. Haber commented in the memo from Mr. Boertje
to Mr. Regelin, in regard to wolves being afraid of
helicopters, the last survey he flew was two months prior to
the mid-January survey.
MR. HABER concluded that by only seeing the People magazine
article, and being denied the opportunity to read the other
technical publications he has written, committee members are
being presented a slanted, inaccurate picture as to Mr.
Haber's effect on the wolves. He urged committee members to
not pass HB 443.
CHAIRMAN WILLIAMS announced HB 443 will be held. He said it
is his understanding that the department is trying to work
with Mr. Haber to get his questions and concerns taken care
of. He told committee members they will take up HB 443
again if there is time remaining after the next bill is
heard.
TAPE 94-42, SIDE A
Number 000
HB 443 - Fish & Wildlife Confidential Records
CHAIRMAN WILLIAMS stated he would like to amend HB 443 and
get suggestions from committee members.
REPRESENTATIVE JAMES made a MOTION to AMEND HB 443 on page
1, line 14: delete the word "or" and on page 2, line 2,
insert ", or if the requestor has been authorized by the
department to perform specific activities, and the requestor
agrees to use the information only for purposes as provided
under contract or agreement."
Number 020
REPRESENTATIVE FINKELSTEIN said he cannot determine the
relationship of the amendment to the concerns being
expressed by Dr. Haber.
DR. HABER stated there is a problem because the amendment
still says that research will not happen if the department
decides not to give him a contract. He pointed out that he
made a request for the radio collar frequencies before he
went to court, laid out a research plan, and wrote a letter
to the ADF&G commissioner several months before and he was
flatly denied. He felt the amendment will still leave it
under the control of the department, precluding independent
research.
Number 040
MR. REGELIN stated ADF&G has some of the best experts in the
world on collecting biological data on wolf populations and
the department stands by what has been done and what has
been published. He said ADF&G did not challenge Mr. Haber's
credibility in court because the department did not feel it
was pertinent. He pointed out that for decades, standard
scientists have used the number and quality of peer review
publications in scientific journals to ascertain a
scientists credibility. He commented an examination of the
publications record of Mr. Haber will show he has not
published in any peer review journals.
MR. REGELIN stated Mr. Haber has an impressive list of
titles but close examination shows that his publications are
published by the Xerox machines of extreme animal rights
groups. He agreed the amendment will not solve the concerns
and problem which Mr. Haber has because the department will
not issue him a permit if they are not required to. He said
ADF&G wants to work with people they have confidence in and
ensure the people can distinguish between scientific fact
and personal opinion.
Number 068
REPRESENTATIVE FINKELSTEIN asked if there is any evidence
indicating that any of the information Dr. Haber collected
has been released to anyone the court order said it should
not go to.
MR. REGELIN responded none of the information has been
released. He stated HB 443 is much broader than what is
required for one person. HB 443 will keep the department
from having to provide the exact locations of traps and
snare sets to people during the trapping operation and
providing information in future court orders, making it
clear that the information is confidential and not to be
used for flight seeing, unethical guides, etc.
REPRESENTATIVE FINKELSTEIN stressed nothing in the court
order precludes ADF&G from keeping the information out of
people's hands. He felt there is no issue.
MR. REGELIN stated ADF&G's concern is that a precedent has
been set and a certain standard has to be met. The court
order says ADF&G can keep the information confidential but
the next judge can change that order. ADF&G wants to have a
policy established like every other state has and like all
the federal agencies have to keep this type of information
confidential. He stressed ADF&G feels the information needs
to remain confidential for the best interest of the state.
When ADF&G feels it is in the best interest of the state to
release the information, they will do so.
REPRESENTATIVE BUNDE agreed. He said the more people who
have the information, the potential for the information no
longer being confidential goes up.
Number 075
CHAIRMAN WILLIAMS asked if there were any objections to the
motion.
REPRESENTATIVE FINKELSTEIN OBJECTED.
REPRESENTATIVE FINKELSTEIN made a MOTION to AMEND the
AMENDMENT, on page 2, line 2, inserting after the word
"activities", the words "or is conducting scientific
research". He felt the amendment only addresses areas where
someone is working on the side of the department. The
amendment does not change what is already proposed in HB
443. He said whether or not a person is conducting valid
scientific research is the issue. He pointed out the
requestor will still have to agree in writing to whatever
terms the department requires about the information.
CHAIRMAN WILLIAMS asked if there were any objections to the
motion.
REPRESENTATIVE HUDSON OBJECTED. He clarified the proposed
amendment to the amendment will read, ", or if the requestor
has been authorized by the department to perform specific
activities or to conduct scientific research, and the
requestor..."
REPRESENTATIVE FINKELSTEIN stated he wanted the amendment to
the amendment to read "specific activities or is conducting
scientific research, and the requestor..." He pointed out
HB 443 already covers situations where requestors are doing
research in agreement with the department. The issue is
someone who does not agree with the department but is still
an entity in the state conducting valid scientific research.
REPRESENTATIVE HUDSON clarified that the maker of the
amendment to the amendment is not precluding the conducting
of scientific research from the need to be authorized by the
department under contract or agreement.
REPRESENTATIVE FINKELSTEIN said he is because that is the
issue being discussed. The department decides they do not
agree with a requestors policies so they do not want to
authorize that particular research, but the department can
make the decision whether or not it is valid scientific
research.
REPRESENTATIVE HUDSON pointed out that specific activities
can include scientific research or any number of other
things.
REPRESENTATIVE FINKELSTEIN clarified that Representative
Hudson's suggestion is to change the words to "or to
conducting scientific research" and then it would be
authorized by the department.
REPRESENTATIVE HUDSON clarified the amendment to the
amendment will read, "perform specific activities, or to the
conduct of scientific research and the requestor agrees to
use..." He felt that amplifies scientific research as a
part of the provision but it still indicates the research
will have to be authorized by the department.
REPRESENTATIVE FINKELSTEIN said the language is becoming
very confusing. He stressed the issue he is trying to
address is somebody who the department does not want to
authorize because that person has a different viewpoint. He
felt the state should not be precluding people just because
they do not have the same viewpoint as the department.
CHAIRMAN WILLIAMS announced he will hold HB 443 until a
later date.
REPRESENTATIVE FINKELSTEIN WITHDREW his MOTION.
ANNOUNCEMENTS
CHAIRMAN WILLIAMS announced the committee will meet on
Monday, March 28 at 8:15 a.m. to hear HB 286 and HB 436.
ADJOURNMENT
There being no further business to come before the House
Resources Committee, Chairman Williams adjourned the meeting
at 10:12 a.m.
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