Legislature(1995 - 1996)
03/08/1995 08:04 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
HRES - 03/08/95 HB 170 - INTENSIVE MANAGEMENT OF GAME Number 438 REPRESENTATIVE PETE KELLY, PRIME SPONSOR, felt the committee should first consider the amendments before them. REPRESENTATIVE SCOTT OGAN made a MOTION to AMEND CSHB 170(RES), version G, page 2, line 5: Delete "from historic high levels". REPRESENTATIVE OGAN WITHDREW his MOTION because he did not have his folder with him. REPRESENTATIVE BARNES made a MOTION to AMEND CSHB 170(RES), version G, page 1, after line 7: Insert a new bill section to read: "Sec. 2. AS 16.05.020 is amended to read: Sec. 16.05.020. FUNCTIONS OF COMMISSIONER. The commissioner shall (1) supervise and control the department, and may appoint and employ division heads, enforcement agents, and the technical, clerical, and other assistants necessary for the general administration of the department; (2) manage, protect, maintain, improve, and extend the fish, game and aquatic plant resources of the state in the interest of the economy and general well-being of the state; (3) have necessary power to accomplish the foregoing including, but not limited to, the power to delegate authority to subordinate officers and employees of the department; (4) cooperate with and assist the Board of Fisheries and the Board of Game by implementing regulations as requested by either board." Renumber the following bill sections accordingly. CO-CHAIRMAN GREEN asked if there were any objections. REPRESENTATIVE BARNES said she discussed the amendment with the sponsor and the sponsor concurs. She stated this amendment will return the bill to the provisions that the function of the commissioner is to include implementation of regulations approved by the board. She felt the provision seems obvious--namely the administrative regulations adopted by the board are to be implemented by the department. The department cannot decide to ignore the administrative regulations created by a board. She stressed if the department disagrees with the regulations filed by the board, it can follow the appeals procedure in the Administrative Procedures Act just like anyone else. She stated the Supreme Court recently ruled the department does not have the discretion to chose which regulations it wishes to implement. CO-CHAIRMAN GREEN read the amendment for the benefit of those who were on teleconference. Number 496 REPRESENTATIVE DAVIES said he understands the intent of the amendment. He stated his first reaction was it seemed completely obvious because that is what the commissioner is supposed to do. He noted in reading the statutes, the commissioner also has the statutory authority to manage fish and game under sustained yield principles. He wondered if there is some inherent conflict built into the statutes, as the Board of Game is also assigned the responsibility to establish seasons, bag limits, etc. for the purpose of managing fish and game under a sustained yield principle as well. He felt the responsibility has been assigned twice-- independently to the commissioner and to the Boards of Game and Fisheries. REPRESENTATIVE BARNES pointed out that the Constitution very clearly lays out the sustained yield principle, which is how the state's fish and game resources will be managed for the human uses of those resources. She felt it is very clear in the minutes of the constitutional convention as to how sustained yield and maximum use is to be achieved. Therefore, she sees no conflict whatsoever by saying both the commissioner, the boards, and the legislative branch of government must ... and the legislature delegates its authority to the Boards of Fisheries and Game, who then become a regulatory body the commissioner works for. She stated if the commissioner chooses not to live up to the regulations, the Boards of Fisheries and Game should fire that commissioner immediately. Number 526 REPRESENTATIVE MACLEAN pointed out that the state is under the Alaska National Interest Land Conservation Act (ANILCA) and management of the federal government. She stressed the legislature prefers the management of the federal government rather than the state management of fish and game. REPRESENTATIVE BARNES recognized there is a federal law which has been passed, ANILCA, and ANILCA does fly in the face of the state's Constitution. She stated that situation is an unsolved problem at this time and until such time the problem is solved as it relates to the state's Constitution, the Supreme Court has ruled the state's Constitution is superior and the state has not turned over its land and waters to the federal government to say they can manage them. She felt it is an ongoing discussion not yet resolved. REPRESENTATIVE IRENE NICHOLIA felt Representative Davies brought up a good point and said she would like to hear comments from the Alaska Department of Fish and Game (ADF&G). REPRESENTATIVE DAVIES said the notes under that section indicate there is an Attorney General's Opinion and perhaps even a Supreme Court case which concurred that the commissioner had the authority to issue emergency orders, on his own authority, when he thought sustained yield was at jeopardy. He stated when passing a statute, it is important to be clear on the intent. He felt the intent of the statute was to allow the commissioner to have that kind of emergency authority. He stressed there is a significant issue needing to be resolved. Number 566 WAYNE REGELIN, ACTING DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ADF&G, said the language (the amendment) being discussed appears in CSHB 170(RES) in three different places. He noted it was removed earlier from the functions of the commissioner but the same language also appears in the duties and powers of the commissioner. He stated the language would require the commissioner to implement regulations passed by the board, such as predator control or a variety of other regulations, and in implementing some regulations, would require the expenditure of funds. MR. REGELIN noted if the Governor orders the commissioner not to implement a program, this law would require him to do so and would also require the commissioner to spend funds even if the legislature did not appropriate monies to implement a program such as predator control. He felt the amendment puts the commissioner in a very difficult position. He thought the amendment also provides a lot greater authority to the boards and reduces the authority of the legislature because it could force the spending of dollars by the commissioner to implement regulations that do not fund the priorities approved by the legislature. MR. REGELIN said in the past, the boards primary function was allocative. In other places in the statutes, it says the boards do not have any fiscal budgetary administrative authority and gives those duties to the commissioner. He stated the department prefers this language not be deleted from CSHB 170(RES) where it currently appears. He stressed the department feels the language should not be included in the sections on the functions of the commissioner or the duties and powers of the commissioner. MR. REGELIN reiterated the language is also included in the section on delegation of authority to the commissioner by the Board of Game and in that section it says if there is a difference in opinion, that difference goes to the Governor for resolution after a public hearing. He thought that was the way the law reads now and noted a slight change had been suggested where in the current law it talks about proposed regulations and probably what is always meant is the implementation of regulations. Number 601 REPRESENTATIVE BARNES said she is always amazed at some of the remarks put before the legislative branch of government, when in fact the legislature does not delegate its power to manage fish and game to the Governor, but delegates that power to the Boards of Fisheries and Game. She stated when the boards adopt regulations through the Administrative Procedures Act and the commissioner does not implement and carry out those regulations, he should be fired and the department should be fired as well. REPRESENTATIVE MACLEAN asked Representative Barnes what she is referring to in her amendment where it talks about the interest of the economy and general well-being of the state. She wondered what the definition is of the interest of the economy. She asked if it is for sport fishing or commercial fishing. REPRESENTATIVE BARNES responded the new language she added was (4) cooperate with and assist the Board of Fisheries and the Board of Game by implementing regulations as requested by either board. REPRESENTATIVE MACLEAN said within the Native communities there is not much trust in either the Board of Fisheries or the Board of Game for management of fish and game. TAPE 95-30, SIDE A Number 000 REPRESENTATIVE KELLY said Dick Burley was on teleconference and might want to explain the difference between the boards and the commissioner. DICK BURLEY, CHAIRMAN, BOARD OF GAME, testified via teleconference and said the volume on the teleconference was so low, he could not hear much of the discussion. REPRESENTATIVE DAVIES said his question concerned the apparent conflict in the existing statutes between the delegation of authority to the commissioner and to the Board of Game, both of which are delegated the authority to manage game under the sustained yield principle. He stated it would seem this amendment would effectively remove the existing delegation of authority to the commissioner. He expressed concern because he felt it was appropriate the commissioner have the authority to issue emergency orders. MR. BURLEY responded he does not read anything into the amendment which would take away the commissioner's ability to issue an emergency regulation if there was a biological reason to either stop or extend a season. Number 074 REPRESENTATIVE MACLEAN asked Mr. Burley if he is also a member of the Alaska Outdoor Council. MR. BURLEY replied he is a member and is a member of numerous other organizations throughout the state. REPRESENTATIVE BILL WILLIAMS said in talking with other members of the fishing community, it was said that having the Governor's office involved in the Board of Fisheries gets very cumbersome. He stated last year at a Board of Fisheries meeting, the Governor's office wanted to cap the Area M fisheries at 300,000 and the board said a cap was not needed. He pointed out that the Chairman of the Board at that time was Kay Andrew and she went against the Governor's wishes, stepping on a few toes. He noted she did not get confirmed to the board. He expressed concern about the Governor getting more involved with the boards. Number 130 REPRESENTATIVE BARNES clarified the issue raised by Representative Williams is that under the function of the commissioner and the language she has added, he is concerned that the Governor would become more involved. She felt the amendment removes the Governor more from the process, as it should be in her opinion. The legislative branch delegates to the Boards of Fisheries and Game the authority to manage the resources as directed by statute. She said the Boards of Game and Fisheries and the commissioner has the authority, on a sustained yield principle, to execute emergency regulations. Generally speaking, when a regulation is adopted, it requires long and extensive public hearings, with the exception of emergency regulations, which are only good for a short period of time. REPRESENTATIVE BARNES felt it was not in the interest of the legislative branch or the people of the state, who the legislature represents, to allow a commissioner of the ADF&G to thwart the will of the appointed people, the legislature confirms, to manage the resources. She said that is why her amendment is good. She does not believe the Governor should be involved in the management of the state's resources, making political decisions. Rather, it should be done by the board who is taking testimony and implementing the laws passed by the legislative branch of government. CO-CHAIRMAN WILLIAMS agreed, but the amendment says under functions of the commissioner, "the commissioner shall." He said the commissioner is appointed by the Governor and he felt the commissioner listens to his boss. He felt this is another step to get control by the Governor's office and take away the intent of the Board of Fisheries and Game. Number 195 REPRESENTATIVE BARNES felt just the opposite is true. She said the commissioner is hired by the board and the tool the legislative branch has is the laws and the confirmation process. She stated the legislature not only confirms the members of the Boards of Fisheries and Game, but also eventually confirms the commissioner as well. Unlike other departments, the ADF&G commissioner is hired. She felt the amendment was a modest statement, to cooperate and assist the Boards of Fisheries and Game by implementing regulations. She stressed that is the commissioner's job. She stressed the commissioner should not be deciding which regulations he is going to regulate and which regulations he will not implement, unless he can clearly show, through an adoption of emergency regulations, that those regulations would hamper the effective management under the sustained yield principle, subject to beneficial uses among mankind. REPRESENTATIVE AUSTERMAN wondered why this amendment is needed if the commissioner is supposed to be doing what she described. REPRESENTATIVE BARNES replied it is needed because the commissioner sometimes does not pay attention. REPRESENTATIVE DAVIES asked if he could address his question to the drafter of the amendment. He expressed concern about the impact of the amendment on the ability of the commissioner to make his own determination on whether or not fish and game is being managed under the sustained yield principle. In addition, he expressed concern about the commissioner's ability to issue emergency orders. For example, if the Board of Game promulgates a certain set of regulations, it seems this amendment would require the commissioner to implement those specific regulations. He asked how much discretion of the commissioner is being taken away by this amendment to make his own determination about how the regulations might impact the harvest of game under the sustained yield principle. GEORGE UTERMOHLE, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS AGENCY, said he finds it difficult to quantify the amount of impairment on the commissioner's discretion that this particular amendment might cause. He stated both the commissioner and the Boards of Fisheries and Game exercise wildlife management responsibilities and each entity is subject to the provisions of the Constitution. He explained to the extent that the parties reach a disagreement, there is a provision under existing law for taking that dispute to the Governor and having the Governor resolve the dispute. MR. UTERMOHLE stated as to this particular language, he does not see it putting that much of a burden on the commissioner or restricting his authority that much, except that the language resolves an ambiguity as to the relationship between the commissioner and the boards. He pointed out it is already expected that the commissioner is cooperating with his boards in implementing regulations because the boards have that responsibility in their area of management and the commissioner has other responsibilities, particularly the administrative and the actual on-the-grounds resource management. Number 293 REPRESENTATIVE NICHOLIA asked if this amendment mandates cooperation by the commissioner. MR. UTERMOHLE said the amendment uses the word "shall" meaning it will be a duty of the commissioner to cooperate with the boards. REPRESENTATIVE NICHOLIA clarified the amendment does mandate cooperation by the commissioner. MR. UTERMOHLE responded that is correct. REPRESENTATIVE MACLEAN asked what implications would the amendment have on ANILCA. MR. UTERMOHLE said this amendment would operate only within the realm of state authority and would have no impact on ANILCA. REPRESENTATIVE DAVIES asked when a law mandates the implementation of certain regulations, does Mr. Utermohle interpret that to mean requiring the commissioner to expend funds in order to implement those regulations. MR. UTERMOHLE responded to the extent that anything the commissioner does requiring expenditure of funds, that would be implied in the cooperating with the boards. He added the commissioner will not be able to spend funds if he has not received an appropriation or for a purpose he has not received authority for. Number 318 REPRESENTATIVE KELLY asked Mr. Utermohle to address a 1993 court decision that ADF&G was involved in and a settlement where ADF&G gave up management to the commissioner. MR. UTERMOHLE responded he was not aware of that particular case. REPRESENTATIVE NICHOLIA asked what kind of flexibility, under this amendment, does the commissioner have to not implement regulations if he does not have the financial resources to do so. MR. UTERMOHLE replied as with any department given a legislative mandate or a mandate under regulations, the department's ability to carry those out is limited by the availability of funds. He said it is common for an agency to have a mandate to perform a particular function, but never does perform the function because the funds are not available. REPRESENTATIVE NICHOLIA clarified if the amendment does mandate the commissioner to do something and he does not have the funds to do that, the flexibility would be that he would not have to cooperate with the boards. MR. UTERMOHLE responded he would not say the commissioner is in a position to avoid cooperating with the boards due to the lack of funds. He said the commissioner may be held to a good faith effort to cooperate with the boards to the extent he has the funds and to the extent of his other obligations. CO-CHAIRMAN GREEN asked if there were any objections to the amendment. REPRESENTATIVE MACLEAN OBJECTED. CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of the motion were Representatives Austerman, Kott, Ogan, Barnes, and Green. Voting against the motion were Representatives MacLean, Davies, Nicholia and Williams. The MOTION PASSED 5-4. Number 365 REPRESENTATIVE BARNES made a MOTION to AMEND CSHB 170(RES), version G, on page 3, after line 13: Insert a new bill section to read: "*Sec. 8. AS 16.05.050(1) is repealed." REPRESENTATIVE BARNES said this amendment repeals the provisions of state law requiring the ADF&G commissioner to enforce federal laws and regulations. She stated the federal government and the ADF&G may still develop memorandums of understanding, cooperative agreements, and other joint programs. This amendment protects the commissioner from lawsuits in state court if state regulations conflict with federal regulations. This part of the code is Alaska's voluntary assumption of federal regulations with or without funding. REPRESENTATIVE MACLEAN OBJECTED to the amendment. REPRESENTATIVE AUSTERMAN clarified the amendment would only involve (1) of AS 16.05.050. REPRESENTATIVE BARNES said that is correct. REPRESENTATIVE AUSTERMAN clarified the remaining sections would be renumbered accordingly. REPRESENTATIVE BARNES stated that was correct. REPRESENTATIVE OGAN asked Representative Barnes to repeat the amendment. Number 403 REPRESENTATIVE MACLEAN asked if the amendment repeals the entire section. CO-CHAIRMAN GREEN responded only (1). MR. REGELIN stated the department probably does not have a problem with the amendment. He said it is a part of the statute which has been there since the 1960s when the state took over the management of wildlife and fisheries from the U.S. Fish and Wildlife Service. He stressed the department does have cooperative agreements with the federal law enforcement agencies and protection divisions. He noted when he talked to the Department of Law, they did not understand why there would be a desire to restrict it. Their concern was that it could be construed by someone who was issued a ticket by a state law enforcement officer for a federal violation, that could be used as a defense because it was the intent of the legislature to not allow that to happen due to the removal of the language. He noted the department felt it would not cost or hurt anything to leave it there, but it might have detrimental effects if it were removed. MR. UTERMOHLE said there is an issue of ambiguity. He stated if this language is repealed, it will be unclear whether the effect is to completely take away all authority of the commissioner to cooperate in the enforcement of federal regulations or if it is merely to delete it from the duties and functions but leave the authority under his other discretionary powers to enter into the various memorandums of understanding and agreements entered into with the federal agencies for a joint or cross enforcement of regulations. CO-CHAIRMAN GREEN clarified that is because if the language is not there, it would not be a problem other than the fact that an overt act is made to do it and that record trails it. MR. UTERMOHLE responded that is correct. Number 446 REPRESENTATIVE KELLY stated even though there is some ambiguity which can be construed, the purpose of the amendment is to protect the commissioner so there are no conflicts in court by statute. What is being created is the possibility of a conflict by statute. He said what is desired, through the removal of the language, is to make it clear that the commissioner of ADF&G is working to enforce the laws of Alaska and he is left with the duties of the memorandum of understanding, which are the day-to-day functions he can carry on with. However, in the case of a court conflict, the commissioner stands for the state of Alaska. This says the commissioner's first duty is to enforce the laws of the federal government. REPRESENTATIVE MACLEAN recalled that Mr. Utermohle had talked about protecting the commissioner from liability. She wondered what the liability would be. MR. UTERMOHLE said the liability of the commissioner would come from someone arguing that this language requires the commissioner to cooperate with federal agencies in implementing their regulations. Therefore, the commissioner would be required to go out and enforce federal regulations. In not doing so, someone might argue in court that the commissioner had a duty to go out there and was derelict in his duties if he did not do that. REPRESENTATIVE MACLEAN asked what the implications are of repealing AS 16.05.050(1). MR. UTERMOHLE responded by repealing it, the statement of the duty of the commissioner to go out and cooperate with the U.S. Fish & Wildlife Service and enforce their regulations would be removed. Any cooperation between the U.S. Fish & Wildlife Service and the department would arise under a memorandum of understanding rather than under this statute. Number 485 REPRESENTATIVE KELLY said some crazy things have happened with the courts and the federal government regarding fish and game and the state's resources. He asked if a judge somewhere or the Interior Secretary decided that intensive game management was illegal, what would the commissioner at that point have to do. MR. UTERMOHLE replied if a court mandated the department not to participate in intensive game management, the commissioner would be bound. He stated as to some decision or regulation of the Interior Secretary binding the department is another issue altogether. CO-CHAIRMAN GREEN asked the people on teleconference if they could be available for the House Resources Committee meeting on Friday, March 10. He said the committee would hear HB 170 again at that time. CO-CHAIRMAN GREEN asked for a roll call vote on the motion. Voting in favor of the motion were Representatives Ogan, Barnes, Kott, and Green. Voting against the motion were Representatives Nicholia, Davies, Austerman, MacLean, and Williams. The MOTION FAILED 5-4. CO-CHAIRMAN WILLIAMS asked if the amendment could be reconsidered at Friday's hearing on HB 170.
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