Legislature(1995 - 1996)
05/02/1996 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 262(RES)(CT RULE FLD) Number 070 CHAIRMAN BRIAN PORTER announced the first order of business would be CSSB 262(RES)(ct rule fld), "An Act relating to management of game populations for maximum sustained yield for human harvest and providing for the replacement of areas closed to consumptive uses of game; relating to management of fish and game areas," sponsored by Senator Mike Miller. Chairman Porter informed the committee that Senator Miller was on the Senate floor so he read the following sponsor statement into the record: "Since statehood, Alaskans whose sustenance and livelihood relies upon our wildlife resources, have lost over 100 million acres to consumptive uses in one form or another. This land mass is larger than the state of Wyoming. Additionally, Alaskan hunters have lost effective utilization of some of the most productive areas in the state through ever increasing restrictions on access. These restrictions are being adopted in lands which sportsmen themselves have helped set aside and whom exclusively pay for the maintenance, management and administration of these lands. "Because of increasing restrictions and the loss of available areas to hunt, Alaskans are currently taking less than 2 percent of the annual harvestable surplus of moose, caribou and sheep--compared to other states who routinely harvest 30 to 60 percent of their big game each year. Additionally, Alaskan hunters harvest of moose, caribou and sheep has declined over 30 percent between 1989 and 1993. "The Department of Fish and Game is funded 100 percent by sportsmen's dollars generated through license fees and self imposed taxes. This legislation recognizes that public trust and would allow for no net loss of land for Alaska's consumptive users. Additionally, it requires remediation of five acres for every acre lost in the future. "The legislation will also eliminate the spending of Fish and Game fund monies paid by consumptive users for any activity on lands where consumptive uses have been eliminated or restricted. By passing this legislation, the legislature will recognize the special public trust created by the use of license monies and will reverse the trend of restrictions on consumptive uses throughout the state." Number 294 SARA HANNAN, Executive Director, Alaska Environmental Lobby, was first to address the bill. She said the bill, at face value and first reading, may sound like a good idea because, of course, user fees imply that you have some discretion over what you're paying for. The reality of what those user fees are isn't so straight forward. Ms. Hannan said a Alaskan hunting, sport fishing and trapping license costs $50. If you get a king salmon tag, it costs another $10. She said the amount the Alaska Department of Fish and Game (ADF&G) spends per hunter is much more than that and the amount it receives from the fish and game fund is much more than that because most of the money is actually a federal tax on all ammunition sold. Much of the ammunition and gun tax in the United States is not paid for by hunters, it is paid for by other users of ammunition - skeet shooters, people buying hand guns for self protection. All of those uses are taxed and all that tax goes into the federal pool of money which is then distributed to states for distribution for fish and wildlife management. She said because that federal formula is distributed on an acreage basis, Alaska benefits. Alaska has a very low percentage of federal tax money going into it, but because of our geographic area we receive nine to one for every dollar we're putting out for our hunting, fishing, sport fishing licenses. So with the monetary formula, it is not really a direct user fee. The costs that ADF&G has to manage fish and game with are really costs incurred to manage that activity. It is not a user fee, it is part of the cost of doing business and is a partial right to use, but it is not the right to control. Ms. Hannan said if we truly wanted to institute user fees for our sport fishing and hunting management, we would have to quadruple the cost of those licenses and we would probably need to institute some taxes on other users - people who are buying binoculars and go out to watch birds. MS. HANNAN said, "What I'd like to talk to you about is the elements of the public trust and invitation to sue. This bill asserts that if the Department of Fish and Game closes an area to hunting or fishing, an equal acreage should be opened. But the fist misconception there is `the department closes areas.' The department doesn't close areas, the Board of Game and the Board of Fish make closures and they make those allocated decisions about when the sport fishing - sport hunting season opens and closes and what the harvest and bag limits are, and that is an extensive public process with advisory committees, across the state, culminating in a year long process and those decisions are changed annually. On an annual basis, a harvest bag limit on any species in any game area could be changed and those should be changed depending on what the biology says and how the last hunt went. So saying the Department of Fish and Game is going to have a game manager sued because of a closure is an erroneous legal proceeding because you're going to sue someone who has no right to change the outcome. The Board of Game is exempted from suit and probably rightfully so because we'd never get people to serve in this public body if they knew any decision they were going to make would hold them personally liable and that they would end up personally in litigation over it. So we exempted the Board of Game from suit, but instead we've put in place the managers who carry out the decisions but don't have the authority to make those decisions. And as much as some people would say that they don't like biologist `X' or biologist `Y,' they take their orders from a board and a commissioner and they, in good faith, carry out their public service duty. And when those management decision exclude someone, the response would be `I'm going to sue you.' And this bill provides for the fact that the state, because that litigant would be a public interest (indisc.), the state of Alaska would pay for the suit. In this bill we create a mechanism that puts a sign that says `sue me' around the neck of a public official and gives the checkbook to the attorney general's office and say `pay for those closures.'" MS. HANNAN said, "Now the closures were talking about, and the bill references a huge amount of acreage that has been closed since statehood to hunting, are federal lands. Most of state land that's available for hunting is open to hunting. And I believe the Department of Fish and Game will speak to one specific instance where near McNeil River the Paint River was closed a year ago - or in this last year to hunting. That decision has created much controversy. It was much a controversial decision at the board level when the Board of Game made that closure and the Board of Game may choose to change that decision in the near future - in the next year. Those are decisions that they change within the statutes as they have them now. But the kinds of closures that could be affected in this because this is any restriction on method of access, if an area is closed to rifle hunting but open to bow hunting, a hunter who is excluded has the right to sue and say, `You have cut off my access and methodology and I'm going to sue you.' Much of those decisions, those kind of allocative closures, aren't made on strictly biology. They are frequently made on decisions such as `We would like to promote sport hunting area X as a trophy sheep hunting area and to do that, we're gunna restrict bag limits severely and we're gunna restrict the size of the sheep. We're going to restrict it a full curl sheep. You can't go in and just get a mature ram, you need a full curl trophy winner because that's something that hunter's policies has asked the Board of Game to do.' But the reality of this bill is that if the Board of Game continues with those kinds of closures, hunters who are excluded could sue and would have, under the legal interpretation you'll hopefully hear from the Department of Law, will say they've got a right to sue." MS. HANNAN said, "In the fisheries area we close some areas to fishing because of habitat degradation. We've recently closed - the Board of Fish closed some areas along the Kenai River to stream side fishing. That has clearly an access issue that when this bill goes into place, the Board of Fish will not be able to do because it's not on the biology of fish that that closure is strictly being made. It's on habitat protection which impacts the biology of the fish, but it is not a direct line and this bill requires a direct biological implication at the time the closure is made. We close rivers sometimes to taking of fish and say, `This is a catch and release fishery,' again because we're trying to promote a trophy fish - trophy trout specimens being harvested. `It's only a fly fishing area,' we do that with some steelhead streams." MS. HANNAN said, "There are many sport hunters and fishers in Alaska and there are complicated decisions that are made in an extensive public process that this bill distorts, convolutes and puts in litigation, and I don't think it benefits the hunters - the fishers of Alaska. It doesn't open up federal lands that are closed. It restricts our managers and our policy makers from making sound decisions and it's gunna cost the state of Alaska because we're asking for suit, we're paying for suit and we will see litigation as a result. I'm gunna leave you with a longer narrative talking about some of those issues and I'm gunna urge you to keep this bill in committee as it is a really bad policy that is only going to serve people who want to sue the state of Alaska, not people who want to hunt and fish in the state of Alaska. Number 885 KEVIN SAXBY, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. He indicated he has submitted to the committee a written summation that was given to the House Resources Committee the previous day where he identified three major legal issues. He indicated that there are probably others. MR. SAXBY referred to the application of the public trust language to specific areas of uplands to critical habitat areas and special management areas is a first and it is an important first. When you use the words "public trust," you're using a term that has a large (indisc.) of legal interpretations for many many decades. He said it is a very important decision to make if you decide to apply that to the uplands and it will probably be that state discretion will be limited in disposing of resources on those specific areas of the land. MR. SAXBY explained the second issue is that definitions that are contained in several sections of this bill are definitions that greatly limit what has been thought to be acceptable sustained yield management practices under the Alaska Constitution. Those definitions, if they are eventually deemed to be the legislative implementation of our constitutional sustained yield mandate will, in the future, greatly limit Alaska's game managers, will greatly complicate management decisions and probably will require that most management decisions will eventually be completely reworked. MR. SAXBY referred to the third issue and said the citizen's suit provisions, as it was previously pointed out, do reportedly send their (indisc.) to authorize to (indisc.) against officials who really wouldn't have the authority to make the changes that the suit is presumably brought to implement. He said there is a problem there. MR. SAXBY said in the Department of Law's view a real invitation is (indisc.). He noted he does agree with the assessment that one of the primary groups that will benefit from this bill will be people who think they're public interest litigants and who want to either delay or change state actions by running to the courts rather than going through the legislative process or any other process. He said those are the three main issues the Department of Law sees so far. Number 1087 STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, came forward to give his testimony. He stated most of his concerns are the same as the concerns expressed by Mr. Saxby. Mr. Daugherty noted he is the lead attorney for the Alaska Board of Fisheries. He said he has a few additional concerns because the Board of Fisheries is not exempted as the Board of Game is from suit under this. The Board of Fisheries has closed a number of areas. The Board of Fisheries traditionally restricts the methods and means quite frequently - fly fishing only, catch and release only and also manages for trophy fishing. Mr. Daugherty pointed out trophy fishing is not something that could be done in one of these areas given the language of the bill because it wouldn't be for maximum sustained yield as defined in the bill. When you allow a fish to reach its trophy size you're going to have to restrict fishing on the lower to smaller size fish. You're going to take a lower poundage of fish that's necessary in order to develop trophy fish. MR. DAUGHERTY said he also wanted to point out it will frequently not be either the Board of Fish or the Board of Game that is closing an area. They may be closed as a result of an action by Parks or the Department of Transportation and the access may be restricted in that way. It may not actually be closed to hunting or fishing, but the access may be restricted by one of those agencies and it would be something that the Board of Fish, the Board of Game, the Department of Fish and Game may not have really any authority to deal with. They do not control access to a lot of public lands. They only control methods and means of hunting and fishing. Mr. Daugherty said those are the issues he wanted to present to the committee. Number 1210 CHAIRMAN PORTER referred to the definition of "maximum sustained yield," and questioned that if you were trying to maintain a trophy fish area, wouldn't the additional regulation of smaller sized fish fit within that definition towards trying to get the maximum amount of sustained yield for trophy. MR. DAUGHERTY said if this were to be interpreted to allow you to do that, he thinks it is something that would have to be interpreted by a court to find out whether or not they would be allowed to develop trophy animals and fish. He said he thinks there is a strong likelihood that they would not be able to develop trophy animals and fish. The bill focuses on consumptive uses and when you're talking trophy hunting and fishing, it is more of a sport rather than a consumptive use. You are greatly reducing the amount of meat that can be consumed when you manage for trophy fish or game. CHAIRMAN PORTER pointed out you get more meals out of a bigger fish. MR. DAUGHERTY pointed out that you'd also take a lot fewer fish. Number 1285 WAYNE REGELIN, Director, Division of Wildlife Conservation Department of Fish and Game, came forward to give his testimony. He said he thinks the goal of the bill is to have a no net loss of hunting opportunity or "acre/breaker basis" in Alaska. The Board of Game already has this policy and is trying to do it. He said he thinks this all goes back to the closure of the McNeil River Refuge that was done by the board for reasons that were not biological, but were more social because of the public demand that those bears that are somewhat habituated to the people not be hunted in the refuge part. That's created a lot of hard feelings by some people who feel it was unwise to do that. The bill is trying to correct that, but it goes a long ways past there in many ways. Mr. Regelin explained it starts out by saying in areas where hunting is important for consumer consumption that you have to manage for maximum sustained yield. He pointed out in many parts of Alaska we manage for other reasons. There are trophy areas like the Tok sheep area. In Unit 9, they manage primarily for brown bears and don't manage for maximum sustained yield of moose or caribou. Mr. Regelin said the way the bill is structured, they don't think they would be allowed to continued to have those other kinds of beneficial things for hunting. He said he doesn't think we should lose those, they were put in at the request of hunters for trophy areas. It would also make it very difficult to take some tools away from the Board of Game on control use areas that they use. Mr. Regelin explained the bill would prohibit the department to restrict access except for protection of habitat. He said in many of our refuges, critical habitat areas and national wildlife refuges there are permit hunts or different kinds of access restrictions that the board has put in over the years for a variety of reasons. The best example would be that the McNeil Refuge would be reopened, but they couldn't limit the number of people who went there to hunt. In the past, there were six permits every other year or three per year. The way the bill is structured they wouldn't be able to do that because another part of the bill requires the Board of Game to guarantee access to hunting. Mr. Regelin said we have never had such a thing and he isn't sure how legally the Board of Game can guarantee access. The Board of Game sets seasons and bag limit restrictions, but he isn't sure how they can guarantee. The way the department sees it is if they are required to guarantee access, they wouldn't be able to limit (indisc.) holders or on a drawing permit. MR. REGELIN informed the committee that a change made to the bill the previous day took out one of the department's major concerns in that if the board closed an area for any reason other than a biological emergency, they would have to open another area of equal size. That was changed to a biological basis and that took away a lot of concern the department had. It still might be very difficult to open a area if the board, for policy reasons, decides to close an area. Most areas in Alaska are open to hunting. There are lots of areas that are closed to hunting by the federal government in national parks. There are very few areas outside the sanctuaries that are closed to hunting and there are some zoned areas around campgrounds within state parks. MR. REGELIN explained the bill has definitions that mandate sustained yield, then it defines the sustained yield in that it mandates us to harvest one-third of all animals in a population born minus those that die from natural causes except for predation. He stated that they would like to be able to achieve that goal in a few places. He noted they get close where there aren't any predators. It would require them to stride to have extremely low levels of wolves and bears so there would be a higher harvest level. Even then, over time they wouldn't be able to sustain those levels because of the severe weather conditions that exist in Alaska. MR. REGELIN said he thinks the Board of Game has a policy for no net loss. The department works hard to maintain access and to have maximum hunter opportunity. He said the department understands what they want, but doesn't think SB 262 is a very wise way to get there. Number 1585 REPRESENTATIVE DAVID FINKELSTEIN asked what the department's position is on the bill. MR. REGELIN said the department strongly opposes the bill as they believe it is bad wildlife policy. REPRESENTATIVE FINKELSTEIN said in trying to meet these demands so that they aren't sued, and to achieve the various demands laid out in the definitions, Mr. Regelin's testimony was that it would be hard to reach. He asked if it would be easier to reach if every single predator was killed in an area. For example, if every wolf was wiped out in a region, would it not be easier to reach that goal? He said it may not be reachable, but wouldn't the chance be better if every wolf was dead? MR. REGELIN said, "Yes it would." REPRESENTATIVE FINKELSTEIN asked if that couldn't be the basis if somebody was suing for failing to try to achieve that goal, because that is what the stand is. He asked if they couldn't be sued for failing to do that. MR. REGELIN indicated it is a possibility. Number 1640 REPRESENTATIVE FINKELSTEIN said, "What about an agency that closes an area along a trail or a campground or something. Would the provisions of the civil suit allow someone to sue that agency - not the Department of Fish and Game, but the Division of Parks or someone who has closed an area. Wouldn't they be able to be sued if they're considered in violation of this particular section in achieving these goals?" MR. REGELIN suggested checking with the Department of Law. He pointed out people can already sue the department, but the bill allows them to be sued as individuals. REPRESENTATIVE FINKELSTEIN referred to the Paint River, which is apparently part of what has upset people, and asked what the harvest was. MR. REGELIN said it averaged about two bears per year. REPRESENTATIVE FINKELSTEIN asked Mr. Regelin how many bears are harvested in a year in Alaska. MR. REGELIN informed the committee 1,200 to 1,400 brown bears are harvested per year. REPRESENTATIVE FINKELSTEIN referred to all the state lands that are open to hunting by statute and asked Mr. Regelin how much is actually closed at any one time. He noted he is talking about complete closures. MR. REGELIN said there are very few complete closures for hunting. He said he didn't have a percentage amount with him. He said there are sanctuaries, the McNeil River, Pack Creek and a couple of other small ones. In Southeast Alaska it is a quarter of a mile along the highways. Those are the areas that are totally closed to hunting. There are other restrictions where it might be closed for one species or it might be quite limited. He said he is probably missing some. Number 1778 REPRESENTATIVE FINKELSTEIN referred to the Chugach State Park and said he is certain it isn't closed by statue, so it doesn't fit into the section that says the exemption for land that's closed by statute. It is open as he has seen people up there hunting. He said if he remembers correctly, there are very detailed standards. There is a variety of patterns as to which area is open to which particular activities. He said, "I guess there is two questions. First of all, isn't a lot of that based on nonbiological considerations, but more recreation access of the high volumes of people - the sheep (indisc.) along Turnagain Arm, the intensity of trail use in various areas. Aren't those nonbiological considerations one of the major factors and wouldn't you precluded from using those same factors?" MR. REGELIN said there are the parks that are heavily used by recreational people along trails or (indisc.). They have worked on the plan with the state parks and kept the areas open that they wouldn't have conflicts with people. He said that is why the Board of Game has taken these actions - it was not biological, but was more social in what the people of Anchorage desired. In this case, that wouldn't preclude continuing this in a state park because he doesn't believe that applies to that section. It is the Title 16 things in refuges, sanctuaries, critical habitat areas and that type of thing. Number 1850 REPRESENTATIVE FINKELSTEIN referred to the last sentence in the first section, "This section does not apply on land designated as a park or a state game sanctuary where consumptive use of game is prohibited," and asked if that is the effective section. MR. REGELIN explained the affect of that is the sanctuaries of Pack Creek and McNeil River. He said he doesn't believe the bill addresses state parks. Number 1870 REPRESENTATIVE CYNTHIA TOOHEY referred to the McHugh Creek tragedy last year and asked if it was closed to moose and bear hunting. She said obviously there were too many moose, bears and people. MR. REGELIN informed the committee members that is an area that is closed for both bear and moose. REPRESENTATIVE TOOHEY asked if there is a possibility that it could be opened for three days at a time, per month, so that the chances of being mauled would be brought down. MR. REGELIN indicated the department is currently working with a lot of people in Anchorage to try to figure out how to work with that problem. He said they will have public meetings and Representative Bunde has hosted one large public meeting. He said hunting might be a part of the problem of hillside moose and bears. It may be a piece of the solution, but it is not the whole solution. People want the wildlife around but it gets dangerous in that area. Number 1927 REPRESENTATIVE BUNDE referred to there being a question earlier about eliminating all the wolves in a particular area and asked if there has ever been a total elimination of wolves in any part of Alaska. MR. REGELIN answered in the negative. Number 1956 REPRESENTATIVE AL VEZEY said based on that testimony, he would like to comment that Alaska used to pay an ounce and a half of gold for every wolf hide that was brought in for a bounty. CHAIRMAN PORTER said the legislative record is replete with reference to wolf problems back to the territorial days. Number 1995 REPRESENTATIVE JOE GREEN said, "This bill was heard yesterday in Resources and we did spade up several concerns and that's one of the reasons we shifted to this committee because most of the things we were talking about did have legal consequences from concerns about what might happen if you open up an area that Wayne was just talking about and then closed it. Does that closure require opening another area? What if you were on a river bank and you closed an area for habitat protection in the river bank. The rest of the river is already open to fishing. Where do you find another river bank to comply with this. I mean these kinds of potential where you cannot do what the bill requires, what happens then? Is there automatic litigation? If there is litigation and you sue somebody who hasn't got the right to amend or change what they're suing for, does that person then fall into some other kind of possible -- I mean would there be any monetary damages associated with it? It says that you can only sue for -- it says it effects specific performance, but maybe as we were talking about earlier, the person being sued doesn't have the authority to do what is being requested by the bill, but it might be a subject to sue. And those were just a few of the questions. There were probably six or seven sightings of potential legal problems." Number 2055 CHAIRMAN PORTER said one of the first things mentioned by Mr. Saxby was the term "public trust," which is used throughout the bill, and has other meanings in law. Specifically, it addresses more of a definition of navigable waterways than it does on land. He referred to his reading of the bill, notwithstanding the policy issues or the agreement or disagreement of the bill, and asked Mr. Saxby if his take on what the language of public trust, page 2, Section 2, is getting at is a perception that there is a public obligation or duty. MR. SAXBY said it seems clear to him that is the intent of the bill. He said he would illustrate a concern he has by giving the committee a specific example. Mr. Saxby informed the committee that he is the assistant attorney general that defends the timber sale invitations that the Division of Forestry comes up with as well as the Board of Game and also defends Fish and Game litigation. He indicated there are some cases from the Kenai Peninsula brought by a coalition of environmental groups to halt the established sales that have been going on there. Specifically, one of those sales was at Kalgin and a number of the other sales are in the vicinity of the Ninilchick/Homer areas and further east of there in the river drainages. In each case, there is a critical habitat area. There is one at Kalgin Island and Fish Creek habitat area. Mr. Saxby explained his opponents would have been very happy to have the words "public trust" specifically applied to those critical habitat areas because regardless of what the legislature's intent may be, those words have independent legal meaning. In the past, groups who want to halt timer sales, prevent mineral leasing from occurring or some other commodity use, have frequent argued that the public trust doctrine requires that a much higher standard of care be given in the decision making process and that the standard of care hasn't been met by the relevant agency, usually Department of Natural Resources (DNR). He said so far we've won on that argument by pointing out that the public trust doctrine does not specifically apply on land, it only applies in the water. Mr. Saxby said regardless of the intent, when those words are used it weakens their ability to make that argument in the future. Number 2185 CHAIRMAN PORTER said given that and the fact that we do not want to have the term "public trust" in the bill, would these kinds of problems or any other problems remain if "public trust" is changed to "public duty" or "public obligation." MR. SAXBY said he thinks that would help a lot. CHAIRMAN PORTER said his review of the bill is the areas concerning the ability to sue to try to compensate for the takings, he doesn't think the legislation is the appropriate place for that kind of response. He said he wouldn't be offended if a member of the committee wanted to remove those two sections, page 2, lines 8 through 12 and on page 3, lines 18 through 22. Number 2238 REPRESENTATIVE BUNDE moved the above mentioned lines be removed. CHAIRMAN PORTER asked if there was an objection. Hearing none, it was so ordered. He stated he was just informed there were two more people to testify. Number 2296 HUGH DOOGAN testified via teleconference from Fairbanks. He stated he is highly in favor of game management. Mr. Doogan said a year or two ago Senator Sharp introduced SB 77 which was passed. Mr. Doogan referred to the phrase "providing for the replacement of areas closed to consumptive uses of game; relating to the management of fish and game areas," and said he assumes this relates to federal land. He said we have a governor and lieutenant governor who are very (indisc.) as far as the subsistence is concerned. He stated there needs to be a way for Alaska to get control of our fish and game back from the federal government and get rid of Title 8 in the Alaska land claims bill which gives rural preference. Mr. Doogan stated he isn't against Native people at all, but he believes that in order for the state to have good management, they have to have complete control and the only way to do that is to get rid of Title 8. MR. DOOGAN informed the committee he has just read the audit report from the Department of Military and Veterans Affairs on the Kobuk flood response and recovery. He said he thinks very strongly that the Senate should call for a public hearing on this matter as there was gross mismanagement of money and material. He said, "Let's put the blame where it really belongs." Number 2374 LYNN LEVENGOOD testified via teleconference from Fairbanks. He stated he is wholeheartedly in favor of CSSB 262(RES)(ct rule fld). Mr. Levengood told the committee is disagrees with former testimony concerning the public trust doctrine. He referred to the words "regardless of intent" and said those words shouldn't be used because they could be misconstrued. One of the reasons the public trust doctrine was included was to create a lock on the lands that are set aside so they can absolutely not be changed at a later point in time. He said there is what is historically referred to as a "bait and fish package," and this is where license revenues of consumptive users provide funding to purchase land or have set aside land where hunting is allowed and five to ten years later that land, though it is managed by hunters and the consumptive user's dollar bills, is then placed off limits to consumptive uses. That is the intent of the legislation and he believes the language is just fine. MR. LEVENGOOD said, "The language that has been proposed being deleted regarding civil suit is also necessary. First of all, the redress for the suit would be equitable (indisc.) and that means it would only require that to be done if the statute required. In other words, there would not be any punitive damage claims, et cetera, but why it is needed is to prevent intentional wrong doing. For example, we now have an intensive management statute on the books for intensive management to occur of fish and game populations when certain conditions occur. Those conditions occur, the Board of Game has findings that occur yet that there has been an intentional nonresponsiveness, even though the statute requires for action (indisc.). In this legislation, to allow for redress, and it's limited (indisc.), so redress would only for remedial action to occur, is absolutely necessary and I'd ask that you would allow that to continue. [END OF TAPE] TAPE 96-61, SIDE B Number 000 MR. LEVENGOOD continued giving his testimony, "...and that could not be redress because there is not enough land, et cetera, et cetera. Well, on page 2, either on line 6 or 7, it says that this subsection does not apply to a temporary closure based on a biological emergency, which is absolutely contemplated in the bill. Temporary biological problems do not trigger this statute and so, I just wanted emphasize that point. I appreciate being able to respond and if there is any questions, I'd be happy to address them." Number 034 CHAIRMAN PORTER asked if there was anyone else wishing to give testimony. Hearing none, he closed the public hearing. Number 044 REPRESENTATIVE FINKELSTEIN referred to the sentence at the end of the first paragraph of the bill, "This section does not apply on land designated as a park or state game sanctuary where consumptive use of game is prohibited," and asked Mr. Saxby if that doesn't mean that this section still applies to Chugach State Park. MR. SAXBY said Representative Finkelstein is right in that there certainly would be an argument that it doesn't apply at least to portions of the state park where consumptive use hasn't been prohibited. He said what Representative Finkelstein is highlighting is that there are issues that are going to have to be thrashed out in the courts. Mr. Saxby said he wouldn't say at this point whether they would lose that case, but it would certainly raise the issue. Number 079 REPRESENTATIVE FINKELSTEIN noted there is hunting within the park, but it is very very carefully managed for recreational reasons which is not allowed under the bill. He referred to page 2, line 22, and said the definition of "maximum sustained yield" precludes achievement and management for mammal predators. He asked Mr. Saxby if the end result of this provision (indisc.) predators means that you couldn't go and manage an area with the goal of maximizing brown bears. MR. SAXBY said, "Perhaps, Representative Finkelstein, that would have to be qualified by the language elsewhere in the bill." He noted he doesn't remember where that language is, but it says in area where it has been determined that human use is an important consumptive use. He noted this is similar to language that the board currently has to deal with as a result of the first version of SB 77, the intensive management law. Mr. Saxby said it certainly complicates the management of the maximum sustained yield of predators. Number 160 CHAIRMAN PORTER referred to the issue of public trust and said he thinks he is convinced that the committee should look for another term such as "public duty" or "obligation." REPRESENTATIVE FINKELSTEIN said there is a whole bunch of things in the bill he would like to have a chance to look at. He asked if the bill could be brought up the following day so he could have a chance to draft some amendments. CHAIRMAN PORTER said if that is the wish of the committee, he doesn't have an objection. He said before the meeting is adjourned, he would like the committee to identify the areas of the bill that has problems. The first is the term "public trust" as opposed to "duty, obligation" or whatever. Chairman Porter said another issue was the guaranteed access requirement as it might relate to limits of the number of hunters, number of fishermen or bag limits. He asked Mr. Regelin if that presents a problem to him. Number 230 MR. REGELIN said he isn't sure about bag limits, but the number of people that could go into an area by permit, if you're guaranteed access, is a concern. CHAIRMAN PORTER asked how "guaranteed access" would work with regard to restricting the number of hunters. REPRESENTATIVE BUNDE referred to the question about opening a similar area and said the North Slope is a good example. Another is a chunk of stream bank. He asked what the practical aspects are of opening new areas equal to the size of the area that is closed. CHAIRMAN PORTER said he thinks that is the policy of the bill, except for temporary closures, the bill says you will try to find an area that is equal in biological composition and open it. Number 280 REPRESENTATIVE FINKELSTEIN pointed out the bill doesn't say anything about equal and biological composition. It says, "Equal in acreage." He referred to page 2, line 6, "equal in size" and said so you could close one area that is low productivity and force them to open all the areas that are stream banks for high productivity. He said the question is, "Is it solvable?" He referred to the question, "Is impact required to be considered on the areas you're opening?" He said this may be extremely problematic because testimony shows there is only a tiny portion of the state that is actually closed. Number 325 MR. REGELIN said, "Yesterday, in the House Resources, they amended that section where it does not apply to a closure. It used to say, `Not apply to a temporary closure based upon a biological emergency...' And that -- it was the word `emergency' that caused me a lot of concern because the board doesn't manage by emergency and that's got a very strict interpretation. So they changed that to `biological basis.' So I think that most places that's not going to be a problem. In the 14 years I've worked with the Board of Game, they've closed one area rather than biological purposes and that was the McNeil River area. At the same time, at the next board meeting or at the next one we increase opportunity to harvest bears in Unit 13 tremendously. So we were well aware of that and then following the board's policy, we search for areas that we could reopen that had been closed and we opened the Delta closed area that had been closed for quite some time - opened most of that back up to hunting. So I think that I'm not too concerned about being able to accomplish that part now that the word `emergency' is out of there." REPRESENTATIVE FINKELSTEIN said he finds it very disconcerting that Mr. Regelin would state that the board has never had an area closed for other than biological considerations except for McNeil River. He asked about the earlier discussion regarding Chugach State Park and the closures that exist there. MR. REGELIN said he had said "in his time on the board" and those areas have been closed longer than that. He noted they are closed for social purposes. REPRESENTATIVE FINKELSTEIN said he thinks there are a variety of areas closed. He said the Chugach State Park closures are not a static closure. They reconsider them and move them around. If you want to hunt, you have to read this year's changes because it is different than last year's. He urged Mr. Regelin to look again at the question as to where you have to consider recreation impacts and closures. He said there are probably quite a few. Number 424 CHAIRMAN PORTER referred to earlier discussion on the limitation on an area that would be based on specialized management to promote trophy hunting and asked Mr. Regelin if he has thought that through to the point of some exception that would still fit within the concept. MR. REGELIN indicated he hasn't and said he doesn't know how to fix that. Number 444 MR. DAUGHERTY said, "Other than a provision of some type of explicit exception to allow for trophy management, it would just exempt it from all of this harvestable surplus maximum sustained yield highest levels of human harvest - all of that would be impossible to do for trophy management without some type of exception to all of those provisions." CHAIRMAN PORTER asked Mr. Daugherty to look at that problem and see if he could come up with wording for reasonable exception language to be fitted into the right place. MR. DAUGHERTY said he would work on language. Number 474 REPRESENTATIVE BUNDE said, "Along those lines comes to mind the spike fork 50 inch regulation on moose. Now you're going to maximize harvest, you've got to remove those regulations, yet you put regulations like that in place so that we have more of a quality harvest. Now would you be able to continue with the spike fork 50 inch regulation under this bill? And I don't expect an answer today." MR. REGELIN said, "I think that we probably could because a big part of that is to maximize harvest. It's to change sex ratios, but again, it's all in who wants to sue ya." REPRESENTATIVE BUNDE said he recalls conversations from both hunting and nonhunting entities that said they want to see bigger bulls. So it's not just maximized harvest, it maximized harvest of a particular kind. Number 518 REPRESENTATIVE FINKELSTEIN indicated concern about the testimony. He said highest levels is not the same concept as smaller levels for a particular quality - trophy qualities or whatever. He said it seems to be an incomplete contradiction. He said he doesn't see how you could possibly work around that. Representative Finkelstein referred to whether someone sues or not and said we actually didn't solve the problem, but just said you can't sue the personnel, you can still sue the Board of Game, you just can't sue individuals anymore. CHAIRMAN PORTER said there are four areas of concern and a general area as expressed by Representative Finkelstein. At this point on the tape was indiscernible due to noise in the microphone. Number 623 REPRESENTATIVE FINKELSTEIN made a motion to table the bill. REPRESENTATIVE TOOHEY objected. CHAIRMAN PORTER called for a roll call vote on the motion to table CSSB 262(RES)(ct rule fld). Representatives Bunde, Davis, and Finkelstein voted in favor of tabling the bill. Representatives Toohey, Vezey, Green and Porter voted against tabling the bill. So the bill was not tabled. Chairman Porter announced the bill would be heard again the following day.
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