Legislature(1995 - 1996)
03/10/1995 08:10 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 - 03/10/95 HB 170 - INTENSIVE MANAGEMENT OF GAME REPRESENTATIVE PETE KELLY, PRIME SPONSOR, stated he would address the amendments before the committee and answer any questions. Number 040 WAYNE REGELIN, ACTING DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ALASKA DEPARTMENT OF FISH AND GAME (ADF&G), stated the issue on inserting the language about the duties and functions of the commissioner was settled at the last hearing on HB 170. He stressed the department still feels the change to the duties and powers and functions of the commissioner is not appropriate. He said the change has the potential to create problems for the working relationship between the Board of Game and the commissioner. He added that relationship has worked for a long time. He noted the system cannot work if there is not a good working relationship between the commissioner and the Board of Game. He did not feel changing the statute is the solution if a problem arises in the future. MR. REGELIN recalled at the end of Wednesday's meeting on HB 170, the committee had just voted on an amendment which Representative Williams had asked for a reconsideration. He said that amendment removed the language regarding one of the duties of the commissioner--to assist the U.S. Fish & Wildlife Service (USFWS) in the enforcement of fish and game laws. He stated if the legislature makes an overt change in the legislation, it could then be used as a defense later on by someone who says state fish and wildlife agents cannot enforce federal law. He told committee members the department feels it is important to be able to continue cooperating with federal fish and wildlife law enforcement agents. He noted that cooperation has worked well for 35 years and the department sees nothing broken in that area. MR. REGELIN stated HB 170 clarifies what the regulations of the Board of Game do and that they are consistent with the sustained yield principle. He said HB 170 also states intensive management will be undertaken when the depletion of the big game prey population from historic high levels has occurred. The department still has concerns regarding that issue. He noted the department could leave the words "historic high level" but in many instances around the state, the department has worked hard with the public, the local fish and game advisory committees, and the board to develop management plans. He explained in these management plans, the department has set population and harvest goals. The department feels these efforts should take precedence over historic high levels. MR. REGELIN said the department recommends on page 2, line 5 after "high levels", add the words "or for population objectives set by management plans and accepted by the Board of Game". He stated in the areas where game management is a hot issue, the department already has management plans, where population goals have been established through a public process and have been accepted by the Board of Game. He thought it would be useful to continue to use those management plans when available. He noted that Representative Ogan has an amendment which would delete the words "from historic high levels". He said that amendment is satisfactory because then the department would automatically manage according to the management plans. Number 184 REPRESENTATIVE KELLY expressed confusion about the words which Mr. Regelin suggested for inserting. He wondered if Mr. Regelin wanted historic high levels in the bill plus those words or if he meant if the words "historic high levels" are taken out, the words "or set by management plans and accepted by the Board of Game" are not necessary. MR. REGELIN responded in working with the committee, he was willing to leave that because he felt the places where intensive management would be used, there is not a place where the department would not have a management plan already in place. He said if the committee accepts Representative Ogan's amendment to delete the words "from historic high levels", there would be no need to add the words "or set by management plans..." because the department would automatically manage it that way. MR. REGELIN said another change HB 170 would produce is to amend the definition of intensive management. He noted there is wording contained in CSHB 170, version G, which excludes changes of regulation as a form of intensive management to change the regulation of human uses. He suggested on page 2, lines 16-18, the new language underlined be deleted and replaced with the words "and regulation of harvest by humans." He explained in many cases, the best method of increasing a population is through regulation changes. An example is Unit 13, where the biggest effect possible is to change the regulations relating to the grizzly bear population. MR. REGELIN said the purpose of having a higher population and more production for human use can be achieved by changing regulations. An example is the Mulchatna caribou herd, which has gone from a small herd to 180,000 today, simply by limiting the harvest to one bull for a period of time. Today, there is a five caribou season for eight and one-half months. He stated often the cheapest and best tool of management is to change regulations. He stressed it would not be very wise to preclude changing regulations as a tool for the department to use to accomplish intensive management goals. He noted that in some cases, changing regulations will not be all that is necessary but felt in this case, as what he sees as a concern that the Board of Game could take action by changing regulations will fix the problem but it might take a couple of years. This would allow someone to sue the department and force the department to spend money because the department is not killing wolves or managing habitat. Number 262 REPRESENTATIVE JOHN DAVIES commented there are a series of proposed amendments. He felt it would be very confusing to go through all of the amendments and then come back and deal with them one at a time. He thought it would make more sense to take the amendments one at a time, deal with them, and dispose of them. He stressed he is frustrated by the fact a quorum is not present. REPRESENTATIVE JOE GREEN said another member would be joining the committee meeting shortly. He concurred with Representative Davies' desire. He stated since a quorum is not present, perhaps an overview is in order and then the committee can go back and review each individual amendment. Number 307 MR. REGELIN said the department worked with Representative Kelly and his staff last week on the definition of harvestable surplus and the definition has been modified to make it clear that these are estimates of productivity and mortality. Based on that modification, the department will accept those changes and try to work with meeting those objectives. He stated the definition of high level of human harvest is then based on the definition of harvestable surplus. He felt it is a measurable harvest goal and in some places, the goal is probably possible to achieve. MR. REGELIN told committee members the department has some concerns that in many places it would require very low levels of predators in the system and in many cases, it would make predator populations unusable because they would be so scarce at periods of time. He thought, however, it is something that is possible to do. He noted the requirement by the law would be to manage so that one-third of the harvestable surplus could be taken by humans. He said in some cases that will be achievable but in others it may not. He felt that is really pushing the biology in northern systems, where there are many other mortality factors. He stated these are goals the department can work toward but added the legislature and the public has to realize that in many instances, that effort is going to push the wolf and bear populations to some very low levels. Number 344 MR. REGELIN stated the department still has a concern that the way the bill reads, the definition of high level of harvest and harvestable surplus does not provide for restrictions on harvest, so the department can accommodate growth of herds. He said in talking with staff members, they felt that is something which is implied and is obvious. He stressed the bill does not read that way and when someone gets in a court of law, it does not matter if it is obvious--if it is not there, it often does not make any difference. He felt it was important to allow for populations to grow because many of them are below levels desired. He said he has looked at the bill many times and has talked to many people trying to figure out how to accommodate the concern and the recommendation is at the end of the definition of harvestable surplus, say that growth would be allowed. REPRESENTATIVE DAVIES clarified the change would be on page 2, section 5, line 23: replace "or" with a comma, and add after harvest "or for herd growth". Number 360 MR. REGELIN responded that was his suggestion and he felt that language would make it more clear. The third concern the department has is the definition of sustained yield. He said the words "sustained yield principle" is used in CSHB 170, version G, and is also used in the Constitution but is not used in the context where it is required to be defined in the bill. The department sees no reason for the term to be defined in the bill. He stated sustained yield is a principle and is not conducive to a strict definition. He checked with five wildlife management textbooks and not a single text defined the sustained yield principle. They all discussed it at length, talked about the principle and gave examples of it, but none of them defined it. MR. REGELIN said the department does not believe a definition in CSHB 170, version G would accomplish anything and could create some legal problems for the department in the future. The department prefers that sustained yield not be defined in the bill but if it is, the definition needs to be changed to accommodate herd growth and the possibility of the need for herd reduction. He explained the current definition would set the standard for sustained yield as one-third of its harvestable surplus and in many cases that will not be achievable. He noted that earlier he provided Representative Kelly's staff with some changes for the definition. He said based on what he knows and his long discussions with the Department of Law, the department urges the committee not to include the definition of sustained yield in the bill. Number 403 MR. REGELIN said subsection (h) of the bill directs the Board of Game to manage the game populations to provide at least one-half of the harvestable surplus for human harvest. Earlier, that was defined as one-third and then it was changed to one-half later. He felt the intent is for that level to be the goal and if that is true, that fact should be stated in the bill, so the department cannot get sued for trying to accomplish that goal. MR. REGELIN told committee members the last suggestion he has is in the last section of the bill where it talks about delegation of authority from the Boards of Game and Fisheries to the commissioner. He said these are the same words which have been added to the powers and functions of the commissioner. He stated a slight change is needed on page 3, line 9. Currently it reads proposed regulations. He felt if there is a conflict, the conflict would be in the implementation of the regulations. He noted just because regulations are proposed does not mean there is a conflict. MR. REGELIN stated this bill was just passed about eight months ago. The Board of Game has worked very diligently to implement this bill into law. When the board met in November, the first time following passage of this bill, the department presented a lengthy report to them and recommended at that time, the board pass some definitions, including the definition of high level of harvest. He stressed the Board of Game discussed the subject for several hours and disagreed with the department. After the discussions, the board felt that each population of game needs to be managed separately and they did not want to be tied into statewide definitions on how they would manage each individual situation. The board did not want to lose that flexibility, so the board chose not to pass any definitions. Now the definitions are coming back to be put in statute. The department's position is that until the bill is implemented and it is determined how it works, it is not necessary to change it. He said the Board of Game will meet again in March and will move forward again with implementation of what was passed eight months ago. CO-CHAIRMAN GREEN noted for the record that Representatives NICHOLIA and BARNES had joined the committee. REPRESENTATIVE SCOTT OGAN made a MOTION to AMEND CSHB 170, version G, on page 2, line 5: delete "from historic high levels". REPRESENTATIVE KELLY stated he has no objections to the amendment. Number 481 REPRESENTATIVE OGAN said the phrasing concerns him because he does not feel it would work for all cases. For example, the Mulchatna herd currently is at a historic high level. He expressed concern about the effect of this verbiage--as soon as a big game population drops off from historic high levels, intensive management would automatically kick in, which is not always the best case scenario. For example, they do not want that many caribou in the Mulchatna herd and would like to bring the herd down to the management plan level rather than the historic high level. He stressed historic high level is not always the best level to have game animals. REPRESENTATIVE KELLY said it is important to note that intensive management is not an overall management plan for fish and game but rather is for specific instances. REPRESENTATIVE DAVIES recalled that Mr. Regelin had referred to levels set by management plans and accepted by the Board of Game. He said he understood the concern about setting a reference level so high that it might be counter productive. He asked Mr. Regelin if that level is set high, would he have a concern if the phrase "depletion of the big game prey population" is undefined. He wondered with this amendment if it would then be necessary to go in and put some reference to levels set by management plans. MR. REGELIN responded that would not be necessary. He said there are other regulations involved when the department gets into predation management. The department has to have implementation plans in place, which require the department to set population and harvest goals through a public process. Those then have to be accepted by the Board of Game. CO-CHAIRMAN GREEN asked if there were any objections to the motion. Hearing none, the MOTION PASSED. Number 550 SARA HANNAN, REPRESENTATIVE, ALASKA ENVIRONMENTAL LOBBY, gave her credentials as an Alaskan and a hunter to assure the committee members she was not present to argue that caribou, moose, or wolves should not be killed. She stressed she is not opposed to killing animals. She stated HB 170 is a very bad precedent, unnecessary, and is something which will put the legislature into a tangle of bureaucratic detailed decisions. At statehood, the state of Alaska assumed management of fish and game and at that time, established the most extensive public process in any incident of government agency to carry out and that is to manage fish and game. MS. HANNAN noted the state has 80 advisory game units, consisting of over 900 Alaskans participating in the regulatory process that comes to the Board of Game for decision making. The Board of Game consists of seven people. She stated most of the board members are hunters, active users of game, and are not there to stymie the growth of hunting in the state of Alaska but are there to make sound management decisions. She stressed the board needs some flexibility in carrying those decisions out. MS. HANNAN felt 90 percent of the discussion surrounding HB 170 is to intervene in game management decisions in two game units. She said there are 26 game units, so she would conclude that in 24 game units, game management is being carried out in a successful way. She would not assert there is not room for improvement in game management. She reminded committee members that eight months ago the statute was changed. She stressed because of the extensive public process established by the legislature for game management and for the Board of Game to make decisions, the board could not carry out intensive game management any sooner than March 18. MS. HANNAN stated the board has several intensive game management proposals to institute in game units 13 and 20. She noted the soonest those regulations could go into effect would be this fall and the soonest some feedback could be received as to whether or not those are successful changes is a season away from this fall. She said if real science is being looked for, a couple of years of implementation is needed before a decision can be made as to whether or not the intent and interest of the legislature is being carried out. Number 594 MS. HANNAN said if the concerns are really about the game management decisions made in two game management units, which 90 percent of the discussion has been about, she felt the legislature is setting themselves up for a disastrous precedent. She reminded committee members there are 24 other game units and many fish units where there are discussions about how the Boards of Fisheries and Game has carried out the proposals. If the precedent is set that the legislature will intervene when there is public concern about a decision, even though on an annual basis those decisions can be changed, she believed the legislature will find themselves making district by district allocation decisions on Boards of Game and Fisheries issues. She noted that intensive game management discussions have gone on for a number of years and fish decisions will be ongoing forever. MS. HANNAN stated a historic perspective is important in finding leadership but if the problem involves the working relationship between the department and the Board of Game not working to the legislatures satisfaction, she did not feel a statutory change resolves that issue. She said a working relationship is established over trust and respect. She stressed the Board of Game is trying to carry out the will of the legislature. She urged committee members to kill HB 170, to work with the Board of Game to carry out their wishes and wait for the implementation of last year's intensive game management law before other decisions are made which control the Board of Game's flexibility in making those decisions. REPRESENTATIVE IRENE NICHOLIA asked which game units are 13 and 20. MS. HANNAN responded she did not have a map with her but felt Mr. Regelin could point out those two game management units. MR. REGELIN pointed out those areas on a map hanging on the wall of the committee room. He said game management unit 13 is the Nelchina basin and goes to the top of the Alaska range, starts at Palmer, is bordered by the Parks Highway on the west, on the east it runs into game management unit 20 and the Alaska Highway is the dividing line in most cases. He stated game management unit 20 is a very large unit and is subdivided into six game management units. He explained unit 20 is north of game management unit 13 and goes all the way to the Canadian border and includes Tok. Each sub-unit is managed separately. Number 636 REPRESENTATIVE KELLY pointed out that HB 170 does not intend to tie the hands of the Board of Game. He said intensive management is a tool to give the board for use when they decide it is needed. MR. REGELIN said he does not disagree with what the intent is. He stated the Board of Game has had those tools before. He reminded committee members that the department had conducted wolf control in previous years. CO-CHAIRMAN GREEN said a committee member had requested his vote be reconsidered on amendment G.2, offered by Representative Barnes on Wednesday that failed. However, that committee member is not present. REPRESENTATIVE RAMONA BARNES said she would hold the amendment for the floor. Number 659 REPRESENTATIVE PETE KOTT made a MOTION to AMEND CSHB 170, version G, as follows. Page 1, line 14: Delete "intensive", insert "active [INTENSIVE]"; page 2, after line 11: Insert a new bill section to read: "*Sec. 4. AS 16.05.255(f) is amended to read: (f) The Board of Game may not significantly reduce the taking of an identified big game prey population by adopting regulations relating to restrictions on harvest or access to the population, or to management of the population by customary adjustments in seasons, bag limits, open and closed areas, methods and means, or by other customary means authorized under (a) of this section, unless the board has adopted regulations, or has scheduled for adoption at the next regularly scheduled meeting of the board regulations, that provide for active [INTENSIVE] management to increase the take of the population for human harvest consistent with (e) of this section. This subsection does not apply if the board (1) determines that active [INTENSIVE] management would be (A) ineffective, based on scientific information; (B) inappropriate due to land ownership patterns; or (C) against the best interest of subsistence uses; or (2) declares that a biological emergency exists and takes immediate action to protect or maintain the big game prey population in conjunction with the scheduling for adoption of those regulations that are necessary to implement (e) of this section." Renumber the following bill sections accordingly.; page 2, line 13: Delete "intensive", insert "active [INTENSIVE]"; page 3, line 7: Delete "intensive", insert "active" REPRESENTATIVE KOTT said this amendment was suggested by a former biologist in Fairbanks. He stated the amendment basically changes the word "intensive" to "active" which he feels is less offensive. REPRESENTATIVE DAVIES OBJECTED for the purpose of discussion and asked for a brief at ease to enable committee members to review the amendment. CO-CHAIRMAN GREEN called a brief at ease. TAPE 95-31, SIDE B Number 000 CO-CHAIRMAN GREEN called the meeting back to order at 8:56 a.m. REPRESENTATIVE DAVIES stated it appears the amendment changes the terminology from intensive to active and seems to have the concurrence of the department. REPRESENTATIVE DAVIES WITHDREW his OBJECTION. REPRESENTATIVE OGAN wondered if the Chairman of the Board of Game could give some input on the amendments. RICHARD BURLEY, CHAIRMAN, BOARD OF GAME, testified via teleconference and stated he has no objection to the amendment. CO-CHAIRMAN GREEN asked if there were any objections to the motion. Hearing none, the MOTION PASSED. Number 123 REPRESENTATIVE BARNES made a MOTION to RESCIND the committee's ACTION in failing to adopt amendment G.2 on CSHB 170, version G, at Wednesday's hearing. REPRESENTATIVE DAVIES OBJECTED. REPRESENTATIVE BARNES stated rescinding the action taken would put the amendment back before the committee and then she could once again comment on what the amendment does. CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of the motion were Representatives Austerman, Ogan, Barnes, Kott, and Green. Voting against the motion were Representatives Nicholia and Davies. The MOTION PASSED 5-2. Number 151 REPRESENTATIVE BARNES stated this amendment would repeal the provisions in state law requiring the ADF&G commissioner to enforce federal laws and regulations. The federal government and the ADF&G can 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 OGAN said Section AS 16.05.050, powers and duties of the commissioner, says "the commissioner has, but not by way of limitation, the following powers and duties". He clarified the amendment proposes to delete one of the items specifically addressed. He wondered if the commissioner would still have the power to work with the USFWS. CO-CHAIRMAN GREEN said his interpretation is that would be the case. He stated the intention is to remove that power as the prime thing the commissioner should do. He noted the powers are listed in descending order and that power is listed first. REPRESENTATIVE BARNES stated that is correct. REPRESENTATIVE DAVIES made a MOTION to AMEND the AMENDMENT by not repealing AS 16.05.050(1) but to change its number from one to last on the list. REPRESENTATIVE BARNES OBJECTED. CO-CHAIRMAN GREEN asked for a roll call vote on the motion to amend the amendment. Voting in favor of the amendment to the amendment were Representatives Davies, MacLean, and Nicholia. Voting against the motion were Representatives Kott, Austerman, Barnes, Ogan, and Green. The MOTION FAILED 5-3. CO-CHAIRMAN GREEN said the committee would now consider the original amendment, page 3, after line 13: Insert a new bill section to read: "*Sec. 8. AS 16.05.050(1) is repealed." REPRESENTATIVE DAVIES OBJECTED. REPRESENTATIVE DAVIES stated the preamble says these are things the commissioner may do but does not necessarily have to do. He said testimony from the department had been heard indicating their concern that taking the overt action to remove this power or duty might actually cause the state more legal trouble than leaving it as is. He wondered what the real purpose of this amendment is. He pointed out the state has federal management of fish and game in any part of the state plus state management, since game populations move from one area to the other and do not recognize the boundaries, it would be a benefit for everyone to have some coordination between federal and state managers. He did not understand why anyone would object to that coordination as that kind of coordination is desirable. He thought the amendment would only provide risks. Number 277 REPRESENTATIVE BARNES disagreed. She said she has not heard any legal opinions saying this amendment would cause risks. She believed the amendment would help the commissioner carry out state law and where there is a conflict between state and federal law, it would keep the commissioner from being sued. GEORGE UTERMOHLE, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS, recalled many statements about potential problems which might arise by either keeping this provision or repealing it. He said all are valid concerns which may or may not cause problems for the department at some later date. CO-CHAIRMAN GREEN asked if removing this power and duty, more than the fact it is not there, could prejudice the court in the future. MR. UTERMOHLE responded it could because explicitly repealing the commissioner's authority to assist or cooperate with the USFWS could be interpreted as saying the legislature intends for the commissioner to not cooperate with the USFWS. CO-CHAIRMAN GREEN asked if that were to come up, would the court then look to the reason--that instead of repealing this, the legislature just eliminated it as one item on the check list of things to do, such as other duties or other things which may come up. He thought the preamble takes care of that. He wondered if the court, by this removal, also might look at the dialogue and say that was not the intent--the legislature did not want that power and duty to be number one on the list, wanted to ensure that the commissioner looks at state issues and if there is a conflict, go beyond that. He stated it just is not enumerated. MR. UTERMOHLE replied the court would certainly try to look at the legislative history as to why that power and duty was deleted. He said the problem is that often legislative history is very ambiguous and sometimes difficult to ascertain. Number 321 REPRESENTATIVE BARNES felt the legislative history now is much easier to obtain. REPRESENTATIVE DAVIES said with that in mind, he asked what the intent of the amendment is. He asked if the intent is for the commissioner to not perform this duty or is it the intent that the legislature just does not want to list it. REPRESENTATIVE KELLY replied there is a concern that the commissioner, by statute, is being put in a situation of conflict. If this power and duty is removed, it does not remove the commissioner's authority to deal with the federal government. However, in a situation of conflict and legal problems, the state has said the commissioner has to assist the federal government. This amendment takes pressure off the commissioner in these areas of conflict. REPRESENTATIVE EILEEN MACLEAN requested Mr. Utermohle to be more specific on what exactly this amendment would do. MR. UTERMOHLE replied the legal effect of the amendment would be to delete a power or duty of the commissioner to assist or cooperate with the USFWS. The amendment would be deleting an explicit mandate that the commissioner do so. He explained what is left behind is an implication that the commissioner may do so. He said the USFWS is the only agency mentioned in this provision setting up the powers and duties of the commissioner. He noted the USFWS is only one of the federal agencies with which the department deals with and with which it cooperates in the enforcement of fish and wildlife laws or regulations. He stated the department also cooperates with the National Marine Fisheries Service, the Bureau of Land Management, the U.S. Forest Service, etc., without an expressed mandate to do so. CO-CHAIRMAN GREEN asked if this provision is removed, so it is not an expressed duty, would there be the same kind of conflict that Representative Kelly indicated--by leaving the provision in because it is explicit. He wondered if that would create a conflict. MR. UTERMOHLE responded by leaving the provision in, it is a state duty or power of the commissioner to assist or cooperate with the USFWS. He said as an expressed duty or power, it is potentially enforceable in court. CO-CHAIRMAN GREEN questioned if there are differences with the federal government, where does the commissioner's position lie if it is explicitly stated as one of his duties. He asked if the commissioner has to go with the federal government against his own state. MR. UTERMOHLE said he would be hard pressed to answer that question as to how a court might come down on that issue. He stated the commissioner's obligation is to the state because he is a state officer and is bound by the state Constitution. Number 379 CO-CHAIRMAN GREEN recalled Mr. Utermohle had indicated that leaving the provision in is a problem. He asked if the provision is taken out, does that remove the problem. MR. UTERMOHLE stated removing the provision deletes the commissioner's duty or power to expressly cooperate or assist the USFWS in enforcing their regulations. CO-CHAIRMAN GREEN clarified by removing the provision, the commissioner's expressed power has been removed but his implied power has not been removed. MR. UTERMOHLE responded to the extent it is the intent of the committee not to give the commissioner the discretion to enter into agreements with the USFWS at some later date, that is true. CO-CHAIRMAN GREEN said he was just referring to the phrase, "but not by way of limitation". MR. UTERMOHLE stated by expressly deleting the language the committee may essentially be amending the language "but not by way of limitation" to say but not by way of limitation except for cooperating with the USFWS. Number 393 CO-CHAIRMAN GREEN wondered if the committee did that and the court interpreted that, would that be the commissioner's duty? He stated by the fact the commissioner is employed by the state, his prime objective would be for the state and if that includes cooperation with the federal government, great. If there is a conflict, the commissioner's first allegiance should be with the state. He asked if this amendment would counteract that in any way. MR. UTERMOHLE stated the amendment would remove the argument that one of the commissioner's duties is to cooperate with the federal government. REPRESENTATIVE MACLEAN said in listening to the discussion, she feels the amendment is good because the commissioner does not have any responsibility at all when it comes to issues with federal intervention to the state. She stated the commissioner would have to go to the board to have decisions made. Number 415 LYNN LEVENGOOD, MEMBER, ALASKA WILDLIFE CONSERVATION ASSOCIATION, testified via teleconference and stated in Title 41, the Department of Public Safety, the commissioner of Public Safety does not have similar wording indicating he has to cooperate with the federal government. The only duties and powers mentioned for public safety is the department may enter into an agreement with federal and local agencies with respect to computerized record sharing. He said by removing this onerous provision, the ADF&G commissioner is given more authority and leverage to negotiate with the federal government on memorandums of understanding and cooperative agreements. He pointed out the federal government knows this duty is in the state's statute. He added it is arguable the commissioner has to enforce federal regulations. He noted if this provision is taken out, the commissioner can still do it but has more leverage to negotiate memorandums of understanding and cooperative agreements. MR. LEVENGOOD stated there are conflicts between state and federal regulations and gave examples. He said removing this provision will still allow the commissioner to have the same powers, as other commissioners have, to cooperate with the federal government. He urged committee members to pass this amendment. REPRESENTATIVE DAVIES asked Mr. Utermohle how he reads the construction of Sec. 16.05.050. He reread the first sentence from that section: "Powers and duties of commissioner. The commissioner has, but not by way of limitation, the following powers and duties:" He noted there is a list following. He asked if that language implies that each and every one of the items listed is both a power and a duty or are some powers and some are duties. Number 477 MR. UTERMOHLE said as this section is drafted, it is impossible to separate the powers from the duties. In current drafting style, a duty is denoted by the verb "shall" (a discretion) and a power of the commissioner is established by the word "may." He noted this section establishes both powers and duties, so the commissioner has a duty to do each of the items listed, while at the same time having the discretion to do them. He stated it is a matter of construction. He pointed out it is difficult to determine how a court would come down on a particular issue. REPRESENTATIVE DAVIES said it seems one could read that to say some of these things listed could be viewed by a court as merely a power, not a duty and therefore not required to carry them out. MR. UTERMOHLE stated that is correct. REPRESENTATIVE DAVIES gave number 3 in the list as an example to illustrate. He said (3) says "under the provisions of AS 36.30, to design and construct hatcheries, pipelines, rearing ponds, fishways, and other projects beneficial for the fish and game resources of the state." He stated the argument being advanced with respect to item number 1 is in the example of number 3--if the commissioner decided not to construct a pipeline and someone could read this as a duty to construct a pipeline, he could be dragged into court for not constructing pipelines. He said that is absurd. He stated this has to be read as a power, to do that when he deems it appropriate. He would apply the same argument to item number 1- -that is a power the commissioner has, not a duty. He stressed since the word "shall" does not appear but the word "assist" does, suggests something the commissioner may do and hence would be a power, not necessarily a duty. Number 506 REPRESENTATIVE BARNES said she understood what Representative Davies was saying but she believed anyone could drag the commissioner to court under the duties section, just as easily they could assume it is a powers section. She stressed if the provision is gone, there is no problem. REPRESENTATIVE MACLEAN stated she likes the amendment because she would rather have federal intervention than state intervention. She felt the amendment would lessen the power of the commissioner. REPRESENTATIVE ALAN AUSTERMAN said he voted no on this amendment previously and had questions for ADF&G at that time. However, there was not time to get those questions addressed so he voted no on the amendment. He stated since then, he has had those questions answered and would support the amendment. REPRESENTATIVE NICHOLIA asked if there were any specific examples where problems may have occurred between USFWS and the state on game issues. MR. UTERMOHLE responded he is not aware of any problems but he is not that familiar with the implementation of this section since 1959. REPRESENTATIVE KELLY said caribou and moose do not recognize boundaries on maps but neither does the federal government. He stated the federal government seems to be getting more and more into the state, wherever they want to go. He stressed because of this rapid expansion of the federal government into the state, perhaps when this provision was written in 1959 and how it applies today are two different things. He did not believe people in that era ever imagined a federal government which would take over land and restrict the state's access such as what is happening now. This amendment goes directly to that, saying the chances are there are going to be more and more conflicts and there is a need to better protect the commissioner, so that by statute, he is not put on the other side. REPRESENTATIVE NICHOLIA questioned if the population of caribou is low on state and federal lands and it is desired to have the state and federal government working together on that low population, would removing this section have an impact on whether or not the state is obligated to work with the federal government. MR. UTERMOHLE responded the deletion of this language will not interfere with the ability of the commissioner or the boards to cooperate with federal agencies. Number 557 REPRESENTATIVE OGAN clarified if this provision is deleted, the commissioner will have the ability to work with or intervene with the USFWS in enforcing federal regulations, if he chooses. MR. UTERMOHLE stated the commissioner's authority, with regard to the USFWS, would be similar to his authority as to other federal agencies with which he is currently cooperating. CO-CHAIRMAN GREEN asked for a roll call vote on amendment G.2. Voting in favor of the amendment were Representatives MacLean, Ogan, Barnes, Austerman, Kott, and Green. Voting against the amendment were Representatives Nicholia and Davies. The AMENDMENT PASSED 6-2. REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 170, version G, page 2, line 16: Delete ", but not including restrictions on methods or means of taking game, access to game, or human harvest of game.", insert "and regulations of harvest by humans". TAPE 95-32, SIDE A Number 000 CO-CHAIRMAN GREEN asked if there were any objections. REPRESENTATIVE BARNES OBJECTED. MR. REGELIN said the department feels there are times when regulation of the harvest by humans is the necessary action, and often the most appropriate and cheapest action, rather than a predator control program or a habitat improvement program, which are very expensive. CO-CHAIRMAN GREEN told Mr. Burley on teleconference that there had been a request made if he has any input on any of the amendments to please let the committee know. REPRESENTATIVE MACLEAN asked what the language "but not including restrictions on methods or means of taking game, access to game, or human harvest of game." would do if incorporated into law for intensive management. MR. REGELIN said the present language in the bill says intensive management includes only predator control or habitat improvement. Intensive management could not be accomplished by restrictions on methods and means of hunters, access to game, or the level of seasons, etc. REPRESENTATIVE MACLEAN asked Mr. Regelin to be more specific. MR. REGELIN used an example of game management unit 13, where part of the problem is a high level of grizzly bears in the area who are eating many of the moose calves. He said the appropriate action, which the board has already taken, is to change the seasons on grizzly bears so more will be harvested, which will probably solve a great deal of the problem. He explained according to the language in CSHB 170, version G, that action would not count toward intensive management. The department is concerned that someone could say the department is not doing predator control or habitat management and therefore is violating the statute and could sue the department. Number 093 REPRESENTATIVE KELLY clarified Mr. Regelin based his argument on the amendment on the fact that the harvest of a predator could not be increased if necessary. MR. REGELIN stated the board could take actions to change the regulations on hunting seasons, bag limits, etc. However, if the Board of Game identifies unit 13 as an area where intensive management is needed and outlines a program which does not include wolf control or habitat management, they are in violation of the statute, even though they have taken the appropriate action or one that will probably solve the problem. REPRESENTATIVE KELLY said the way the department has read this is mistaken. He stated the word "restriction" is what is important. It is saying that intensive game management is not about restricting the ability to do that but there is an opportunity to expand it if desired. He pointed out the department has all the means and methods necessary, outside the definition of intensive game management, to handle all of the issues Mr. Regelin just addressed. He recalled that Mr. Regelin's fear was he could not expand it. Representative Kelly agreed the department should be able to expand it, but added that intensive game management is not about restricting it. MR. REGELIN used the example of the Mulchatna caribou herd. He said years ago, the appropriate action there was to restrict the amount of harvest to allow the herd to build. He pointed out that restriction worked. The herd has grown from 30,000 to 180,000. He stressed if that is the appropriate action for intensive management in an area, then it should be allowed. He noted one of the cornerstones of good wildlife management, whether it is intensive, active or whatever, is good regulations. REPRESENTATIVE MACLEAN clarified that the intensive management being discussed is for state lands only. MR. REGELIN stated the regulations adopted by the Board of Game apply to all lands. Number 164 REPRESENTATIVE MACLEAN asked if the regulations would include federal lands. MR. REGELIN responded the regulations do apply to federal lands. The exception is where the federal government has the authority to close their lands when it is necessary for local subsistence users. REPRESENTATIVE MACLEAN asked if the regulations would include corporate lands. MR. REGELIN replied no. At the present time, the federal government does not have any authority over private lands. REPRESENTATIVE MACLEAN clarified that corporate and federal lands are not under state jurisdiction, so intensive management would be only on state lands that have been warranted within the state government by the federal government. MR. REGELIN stated that is not correct. He said in most cases, there are federal subsistence laws and state subsistence laws which are very similar. He pointed out there are very few cases in Alaska where the federal government has closed federal lands to everyone except federal subsistence users. MR. UTERMOHLE said the state's fish and wildlife jurisdiction extends throughout the state on state and federal lands except those federal lands where the federal government has its sole authority over fish and game management. Number 192 REPRESENTATIVE OGAN asked when all of these amendments were offered and wondered if there was a 24-hour rule. CO-CHAIRMAN GREEN responded there is, but stressed these amendments follow almost to the letter those which were issued by ADF&G at Wednesday's hearing. He stated the committee has had these amendments for two days. CO-CHAIRMAN GREEN asked for a roll call vote on the motion to amend. Voting in favor of the amendment were Representatives MacLean, Davies, and Nicholia. Voting against the amendment were Representatives Austerman, Barnes, Ogan, and Green. The MOTION FAILED 4-3. REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 170, version G, page 2, line 23, following "predation": delete "or" and insert ","; following "harvest", insert "or for herd growth". REPRESENTATIVE BARNES OBJECTED. REPRESENTATIVE DAVIES stated this amendment would simply add in the definition of harvestable surplus the allowance for herd growth. He felt there is a need to make a provision in the calculation that sometimes the appropriate goal is also to grow the herd, not just maintain it. REPRESENTATIVE OGAN noted he specifically requested that Mr. Burley be allowed to comment on the amendments before the committee voted. CO-CHAIRMAN GREEN said Mr. Burley has the right to voice his opinion at any time. REPRESENTATIVE OGAN requested he does comment. REPRESENTATIVE MACLEAN stressed Mr. Burley is not a committee member but is the Chairman of the Board of Game. She stated there is a need to recognize that Mr. Burley is also a member of the Alaska Outdoor Council. REPRESENTATIVE KELLY stated HB 170 is all about herd growth. He explained the problem with inserting herd growth in this language is if there is a department that does not want to carry out intensive management, which is the fear and why these definitions have been inserted, the excuse could always be made that the harvestable surplus is for herd growth and the department would not have to enact intensive management the way the legislature or the board wishes. He felt there is too much wiggle room for the department--they need a firm policy. He strongly objected to inserting "or for herd growth". MR. BURLEY stated he does not have a problem with inserting this language. He said there may be times when it is appropriate to consider that, although he felt the Board of Game would consider that whether it was in the bill or not. Number 285 REPRESENTATIVE OGAN asked Mr. Burley if he had reviewed all the amendments that ADF&G had suggested. MR. BURLEY replied he has looked at the amendments submitted by ADF&G, since they were available on Wednesday. REPRESENTATIVE OGAN asked Mr. Burley if he has a problem with the way CSHB 170, version G is written and wondered if he would like to see any of the ADF&G proposed amendments implemented. CO-CHAIRMAN GREEN ruled Representative Ogan out of order. He stated the committee is speaking to a specific amendment. CO-CHAIRMAN GREEN asked for a roll call vote on the motion to amend. Voting in favor of the amendment were Representatives Nicholia, Davies, and MacLean. Voting against the amendment were Representatives Ogan, Barnes, Austerman, and Green. The MOTION FAILED 4-3. REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 170, version G, page 2, line 26-27: delete all material. REPRESENTATIVE BARNES OBJECTED. She said in testimony before the committee, the department did not have a definition for sustained yield. Therefore, she would not want a definition to come out since they do not understand it. Number 327 REPRESENTATIVE DAVIES stated he did not believe that is a fair characterization of the department's testimony. He said the department testified they have several books containing extensive discussions of sustained yield. The point the department made was that in no cases did any of the textbooks offer a specific definition of sustained yield. Rather, the textbooks said sustained yield, in the biological world, is a principle and is not subject to this level of specificity. Further, the department said if the committee wanted to have a definition in the bill, they then could offer a specific definition but it was their recommendation to not include a definition in this part of the statute. REPRESENTATIVE BARNES stressed she heard Mr. Regelin say that he did not understand the definition of sustained yield and she had offered to give him a book which explained it. She expressed opposition to taking the definition out of the bill. REPRESENTATIVE MACLEAN expressed opposition to having the language in the bill because it is a back door approach to deal with subsistence and the Alaska National Interest Land Conservation Act (ANILCA). She expressed support for the amendment. MR. REGELIN said he was not sure if he mis-spoke earlier. He stressed he certainly understands the principle of sustained yield, as he went to school for 12 years and studied the principle. He stated he tries to follow the principle and so does the Board of Game. He resented the fact that people say he does not understand the principle. REPRESENTATIVE BARNES stated the next time Mr. Regelin testifies before the committee, he should get his phrases correct before he speaks. She recalled that at an earlier hearing she had read from the Constitution and from the book on the sustained yield principle. Number 369 REPRESENTATIVE MACLEAN asked Mr. Utermohle if the committee was to delete the definition of sustained yield, how it would affect the bill. MR. UTERMOHLE responded the deletion would leave the determination of sustained yield up to the board and commissioner under principles set up in the Constitution. REPRESENTATIVE MACLEAN asked if the definition would include all game and fisheries. MR. REGELIN said the way the bill is structured, the definition of sustained yield would apply only to this section of intensive management. He stated in talking with the Department of Law, they are very concerned because sustained yield is not defined in most places. He added sustained yield is discussed in the Constitution as a principle. Because of that, he pointed out a judge could see that sustained yield is defined in this bill and could apply that definition to other places, which is the concern. Mr. Regelin said in intensive management, the definition of sustained yield will tie the department to one-third of the harvestable surplus and a judge could take that and use it elsewhere. REPRESENTATIVE KELLY stated the sustained yield principle is a constitutional mandate. He pointed out if the department was observing the sustained yield principle, it would not have to be further defined. He said he is simply putting into statute and applying to a department something that is already in the state's Constitution. CO-CHAIRMAN GREEN asked for a roll call vote on the motion to amend. Voting in favor of the amendment were Representatives Davies, Nicholia, and MacLean. Voting against the amendment were Representatives Barnes, Ogan, Austerman, and Green. The MOTION FAILED 4-3. Number 420 REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 170, version G, page 2, line 29: following "shall": insert "adopt goals to". REPRESENTATIVE BARNES OBJECTED. REPRESENTATIVE DAVIES stated this amendment is what the Board of Game does. The amendment says the board shall adopt goals to manage game populations for which human use is an important use so as to provide at least one-half of the harvestable surplus for human harvest. He said the committee has heard testimony that even achieving one-third in some cases may be a very difficult and perhaps biologically impossible situation. Therefore, he stressed to specify that the board shall achieve one-half is even more questionable as a requirement. He said to have that as a goal and a desired end is reasonable. REPRESENTATIVE OGAN agreed with Representative Davies. He did not feel the Board of Game should be locked in to provide one-half because that is unrealistic. He felt the one-half should be a goal, rather than a requirement because fish and game management is not always locked into shalls and wills. REPRESENTATIVE KELLY stated this issue is not necessarily about the harvestable surplus. He said the issue is about who is responsible for management and he reminded committee members the board is responsible. He noted the amendment says the board shall adopt goals to manage game populations and they are just stating the board itself is the management entity of the whole system, not the department. He felt it would not be clear enough. REPRESENTATIVE DAVIES said if that were the case, why not just put a period after "important use". He stated the issue he is concerned about is the standard of management that is being required in law with the word "shall", which is one-half of the harvestable surplus. CO-CHAIRMAN GREEN offered a FRIENDLY AMENDMENT to the AMENDMENT: instead of using the words "adopt goals" put the word "attempt". He stated the phrase would then read, "The board shall attempt to manage game populations..." REPRESENTATIVE KELLY felt in the definition of managing, goal setting is implicit in that definition and the board has that ability under the authority the legislature has already given them. REPRESENTATIVE DAVIES said the sentence is very clear and straightforward. It says the board shall manage game populations. He stated if the board does not take every action required to achieve that goal--the level specified--they could be taken to court. He stated the level stated is so unreasonable, it almost guarantees the department will be in court. He felt the sentence, as written, is very ill-advised as a mandate. REPRESENTATIVE MACLEAN reminded committee members of the False Pass situation. It is not possible to do one-half of the harvestable surplus. Therefore, there is a problem in the Aleutian and Bethel areas. She agreed with Representative Davies that perhaps the committee should just put a period after "important use". CO-CHAIRMAN GREEN reiterated he would like to change "adopt goals" to the word "attempt". REPRESENTATIVE DAVIES said he would consider that a friendly amendment. REPRESENTATIVE BARNES WITHDREW her OBJECTION. CO-CHAIRMAN GREEN asked if there were any further objections. Hearing none, the MOTION PASSED. Number 493 REPRESENTATIVE DAVIES made a MOTION to AMEND CSHB 170, version G, page 3, line 9: following "on": delete "proposed", insert "implementation of". REPRESENTATIVE BARNES OBJECTED. REPRESENTATIVE DAVIES stated this is an issue of there is no conflict on proposed regulations because there is no issue yet. The issue is on the implementation of the regulations or the lack of implementation. He said if regulations have been adopted but not implemented, then there would be a conflict. He pointed out when someone is in the discussion stage and only proposing regulations there is no conflict to be resolved. He felt this is a technical amendment to accomplish what is intended by this section. REPRESENTATIVE KELLY said of all the amendments offered by Representative Davies, this amendment may be the worst in terms of what the intent of the legislation is. He stated if the amendment is adopted, it will allow the department to enter into endless conflict over regulations which have already been finalized and approved by the Governor. He noted the department has an appeals process they are already able to go through. He stressed this amendment is saying even after a regulation has been finalized, the department has the ability to continue to enter into problems with it. He said the issue has to be over the implementation of proposed regulations during the process of making the regulations and all that entails. Once the regulations are done, the department still has a regular appeals process they can go through. He expressed opposition to the amendment. REPRESENTATIVE MACLEAN said she did not understand Representative Kelly's reasoning. She stated he did not clarify exactly what the problem is. REPRESENTATIVE KELLY stated implementation of regulations means a regulation has been finalized. He said if the word "proposed" is taken out and "implementation of" is inserted, then what is being said is the department has the ability to enter into an endless conflict over regulations which have gone through the process and have been finalized by the Governor. REPRESENTATIVE MACLEAN pointed out the regulations have to be implemented because the board has agreed. She did not see any conflict. Number 536 REPRESENTATIVE DAVIES said he also was quite puzzled by the comments and logic expressed by Representative Kelly. He cannot see how there can be a conflict on a proposal. He noted a conflict has to do with whether a regulation is implemented or not. He pointed out there are people who feel there are regulations for intensive management which are not being implemented. He added that is where the conflicts and discussions are in this issue. CO-CHAIRMAN GREEN asked for a roll call vote on the amendment. Voting in favor of the amendment were Representatives Nicholia, MacLean, and Davies. Voting against the amendment were Representatives Ogan, Barnes, Austerman, and Green. The MOTION FAILED 4-3. REPRESENTATIVE BARNES made a MOTION to MOVE CSHB 170, version G, as amended, with attached fiscal note, out of committee with individual recommendations. REPRESENTATIVES DAVIES and MACLEAN OBJECTED. REPRESENTATIVE NICHOLIA asked Mr. Burley if he was speaking personally or on behalf of the Board of Game. MR. BURLEY said he was speaking on behalf of himself and added he takes great exception to being insulted about his membership in the Alaska Outdoor Council. REPRESENTATIVE MACLEAN said she was the one making the comments about Mr. Burley's membership. REPRESENTATIVE MACLEAN expressed opposition to this legislation because it is a back door approach to address subsistence and ANILCA. REPRESENTATIVE DAVIES stated he did not have objection to a number of things CSHB 170 does, but he does have concern that this bill comes so shortly after having passed a fairly major piece of legislation last year. He said he objects to this bill to the extent that this bill is expressing no confidence in the board or the department in implementing last year's bill. He said to the extent this bill is offering the Board of Game and the department tools, that is appropriate. He added the fact the legislature is moving rather quickly before seeing the effect of last year's legislation is not well taken. He stated for that reason he has a problem with the action being taken today. REPRESENTATIVE OGAN said he has an unsettling feeling about the bill. He stated the biggest problem he has that because of his busy schedule, he has not had the time he would have liked to devote to studying the issue. He requested the committee hold the legislation and vote on it next week. Number 600 REPRESENTATIVE BARNES said there is a motion to move the bill out of committee on the floor. She stressed this is the fourth hearing on HB 170 and she could not understand how anyone could say at this point they do not know what is in the bill. REPRESENTATIVE OGAN stated he knows what is in the bill, but there are a couple of things he is not comfortable with. REPRESENTATIVE MACLEAN stated what this bill does is address fish and game--it can be commercial fishing, sport fishing, sport hunting, subsistence--the bill deals with all of those things. She said the bill is intensive game management of fish and game. REPRESENTATIVE KELLY said the bill is about giving the board tools to use, when they deem it necessary, when a particular population is in need of some extra measures. He stressed the bill does not bind the board's hands, it does not take power away from them--it just gives them tools. He pointed out HB 170 is about having more animals and increasing the population of animals in the state of Alaska. He stated the amount of population decline seen, particularly around the urban areas, is in no way related to the number of people there. The decline is because proper management tools have not been implemented. He told committee members HB 170 is another tool to give to the board to bring those herd levels up. The bill is not about killing animals but is about increasing herd size, which is a resource of the state for the use of all people, including people to view them, people to hunt them or people to use them for subsistence. He pointed out if there are more animals, there will less of a problem with the issues of subsistence, tourism, resource management, etc. REPRESENTATIVE MACLEAN said when the bill is reviewed, it is consistent with the sustained yield principle which she feels is the whole point of the bill. She stated sustained yield to her means that fishing, hunting, etc., has to be curbed. REPRESENTATIVE DAVIES noted his children have trouble getting to the school bus some mornings because there are moose in his backyard and when he drives into Fairbanks, it is unusual not to see a moose. He did not feel there is a crisis which needs to be responded to. REPRESENTATIVE NICHOLIA stated the Board of Game is meeting this month to address intensive game management. She cannot understand why HB 170 is on a fast track since the board plans to deal with the issue. She stressed it is important that game management not be undertaken by legislation because it is the function of the department and the Board of Game. CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of the motion were Representatives Austerman, Barnes, Ogan, Kott, and Green. Voting against the motion were Representatives MacLean, Davies and Nicholia. The MOTION PASSED 5-3.
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