Legislature(1995 - 1996)
04/29/1996 08:18 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
CSSB 262(RES)(ct rule fld) - MANAGEMENT OF FISH/GAME POPULATION & AREA Number 1470 CO-CHAIRMAN GREEN announced the next 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." He said when the committee members previously reviewed the bill, they asked that the drafter be in attendance to answer some questions. Number 1480 GEORGE UTERMOHLE, Attorney, Legislative Legal and Research Services Legislative Affairs Agency, Alaska State Legislature, came before the committee to answer questions. CO-CHAIRMAN GREEN said there is a specific group of people that are protected under this bill, but there are others that were mentioned in the previous hearing on the bill that might also need the same sort of protection such as the Board of Game. He asked if there was a purpose for just excluding the Board of Fish. MR. UTERMOHLE said that change was made on the floor of the Senate. He said he was present and didn't hear the debate as to the reason for that change. Number 1527 CO-CHAIRMAN GREEN said, "Let me rephrase that. If there seemed to a justification for them, would you also seem - would it seem logical to follow that other boards and activities - other people within various departments that a -- I know there is the legislative protection, but would there be protection for others even though it's not specified?" MR. UTERMOHLE said that we're basically talking about is the ability for a person to sue a public agency or public official to enforce the provisions of this act. Basically, in normal situations a employee of the state is entitled to qualified immunity as long as he is performing his functions in good faith, he enjoys qualified immunity from suit. However, this bill provides that persons subject to suite under this bill, because the term "public official" is broad and left open on the face of the bill, those people are denied their qualified immunity. So they are subject to suit regardless of whether their acts are in good faith. Number 1588 CO-CHAIRMAN GREEN asked Mr. Utermohle if he thinks this would invite litigation. MR. UTERMOHLE said he thinks the structure of the bill does invite litigation. He said it seems to him the crux of the bill uses the threat or actual litigation to make sure that the provisions of the bill do occur - that the game is made available for consumptive uses - that the land is not closed to certain kids of hunting, etc. He said the bill intends that result. The bill only provides for equitable relief, essentially an injunction to compel you to comply with the act or to remedy some action that's in violative of the act. What this does is compel someone to perform an act. The act does not provide for damages - for payments, as a result of violating the act. CO-CHAIRMAN GREEN said the suit would be limited just to do what you're supposed to do and not any kind of real or punitive or any other kinds of damages. Number 1657 REPRESENTATIVE DAVIES said suppose that the public official believes that it is in the best interest of the state of Alaska to take some action that would close and then refuse to implement a order. He asked if you would be subject to other penalties at that point. MR. UTERMOHLE explained that if he declined to comply with an injunction issued by the court, he would be in contempt of the court. Number 1679 CO-CHAIRMAN GREEN said, "Is there a potential for, in sight of litigation, if Area A is closed of whatever acreage that might be and the state then is required to open three times that amount, would that -- by reading this, does that imply or mean that it would have to be adjacent in the same area or could that be `O.K., we're gonna close it here in Northwest Alaska and we'll open it in the very southeast tip three times as much' and then somebody from Northwest would say `Hey, you closed off my hunting rights and I can't get to Southeast,' even though you've complied with the three to one ratio." MR. UTERMOHLE explained under Section 2, the new language added is AS 16.05.145, "Division relating to public trust for special fish and game management areas." It specifically provides that the replacement land be provided in a location in the same geographic area. Number 1732 CO-CHAIRMAN GREEN said, "What if there weren't three times as many acres and that geographic - and how big is a geographic area? I don't know whether that means the same hunting area or -- Is a geographic area a certain size?" MR. UTERMOHLE explained a geographic area would be pretty much determined by the size of the area to which the restriction for closure is applied. Number 1751 CO-CHAIRMAN GREEN said "If they closed 40 acres then 120 acres would be in the geographic area somewhere close." MR. UTERMOHLE answered in the affirmative. He explained presumably in some area that would be of benefit to those people who were closed out by the closure. There does not seem to be a similar provision in the first section of the bill relating to management of game where it requires that the state provide three times the area is to where closure or whether consumptive uses of game are precluded. He said the first section of the bill seems to operate more on a statewide level. Number 1795 CO-CHAIRMAN BILL WILLIAMS referred to a person who may bring civil action and asked if a person can't do that today. MR. UTERMOHLE said they could. Number 1804 CO-CHAIRMAN GREEN said he thinks Mr. Utermohle indicated there is a certain amount of immunity, as a public employee, that this waves. MR. UTERMOHLE answered in the affirmative. He explained that under current law, the ability to bring suit against a public officer exists and would protect any public officer from damages. This bill releases equitable relief. The loss from immunity perhaps is not that significant for the individual officer. Number 1837 REPRESENTATIVE DAVIES referred to the terms of the bill on the bottom of page 2 and the top of page 3 where it says the public trust would be breached by restricting access and also restricts fishing and hunting and trapping activities. He asked if there is any mitigation or definition of that restriction. He asked if the restriction in a certain area to bow hunting only would constitute a breach of trust. MR. UTERMOHLE said he thinks that could be considered a restriction subject to provisions of the bill. He said what constitutes a restriction will very well be in the eyes of the beholder and may result in considerable litigation. Number 1892 PETE SHEPERD testified via teleconference in support of CSSB 262(RES)(ct rule fld). He said ever since the environmental (indisc.) was adopted, it misinterpreted all the (indisc.) who is considered the father of modern day management. The concept of a land ethic, which he among other (indisc.), allows for active management (indisc.), we have witnessed a distortion of this vision to one of protecting land from human manipulation and consumptive use. The environmentalists reasons for placing land in restrictive categories would protect the integrity of ecological (indisc.), ecosystems and wildlife diversity. This paradigm saw its Alaska (indisc.) in ANILCA in which 32.5 million acres belongs to general hunting and about 60 percent of the state, under federal control, was to be only actively managed. Mr. Sheperd said since ANILCA, every opportunity or excuse has been ceased to set land aside for nonconsumptive use. Some game managers and activists apparently view the game fund as an entitlement, and apparently use it for viewing set aside perusing nonconsumptive uses. Sportsmen do not deprive the resources in these funds, but they deplore the assertion that hunting and trapping are not compatible uses of these lands. Mr. Sheperd said it is only just that land use laws for hunting and trapping be compensated by replacement. Otherwise the hunters, trappers and subsistence oriented persons will be effectively disenfranchised from consumptive activity even on state owned land. Active management for human consumptive use is a legitimate and healthy use of state lands. Number 2005 BILL HAGAR, Member, Alaska Wildlife Conservation Association (AWCA), was next to testify via teleconference from Fairbanks. He stated he has great concern over the ability to litigate an individual in the department. He said, "What we've found is that they're basically telling us and the legislature to take a hike, and advancing an agenda that seems to be personal and through our research, it's quite unethical as far as their ethical guides go. And we've felt that we've asked the legislature for a balance to give us a little bit of fair play when bureaucracy out of control as they misappropriated $861,000 last year. This year the legislature defunded subsistence and habitat and also the misuse of $900,000 that Senator Sharp had set up for the intensive management. When we consulted counsel, it was over the fact of how do make the bureaucracy do what the legislator intended (indisc.) This (indisc.), so that's probably the primary reason why this litigation and the ability to sue puts a little more responsibility in that balance. The legislature is very good. Time's short and I appreciate you for taking it up. Thank you very much." Number 2091 LYNN LEVENGOOD, Executive Director, Alaska Wildlife Conservation Association (AWCA), was next to testify via teleconference from Fairbanks. He said the legislation is necessary and it's intended that there be no net loss for consumptive uses. Since the beginning of statehood, millions and millions of acres have been lost to consumptive uses and that trend has recent resurfaced in the last two years promulgated by the lack of the of the Department of Fish and Game and most recently, the Board of Game. He said since Alaska has become a state, we've lost millions of acres. Alaska has more park lands than any other state or country in the world. The recent advocacy of the Alaska Department of Fish and Game and the Board of Game to close hundreds of square miles to consumptive uses makes this legislation absolutely necessary. The board, last year, closed over 200 square miles on the Alaska Peninsula to hunting, though no conflicting uses or biological problem existed and that was admitted to by the department's own biologists. They closed over 90 square miles in the Mat-Su area this year. Then after promising to open up new lands to hunting at the spring meeting in Fairbanks, they opened no new lands, but instead closed over a million acres to certain user groups. These closures were led by environmental extremists who want no hunting and were championed by Board of Game nominee Ruggle(Sp.?) who must not be confirmed. Mr. Levengood said the intent of this legislation has widespread support bipartisan. It has have urban and rural Native and non-Native people supporting this bill. He said this legislation is necessary because of the bait and switch tactics that the department is using. He urged the committee to set aside the areas that are designated in the bill. He continued to give testimony in support of the legislation. Number 2241 CO-CHAIRMAN GREEN said there is Amendment 1 before the committee, by Representative Ogan. He asked Representative Ogan if he would move his amendment. REPRESENTATIVE OGAN pointed out that a quorum wasn't present. Number 2250 CO-CHAIRMAN GREEN called a brief recess at 8:56 a.m. He called the meeting back to order at 9:00 a.m. He announced Amendment 1 was before the committee. REPRESENTATIVE OGAN explained Amendment 1 deletes the three times and changes it to equal in size. He said he agrees that we cannot lose areas to hunting and stated he would like to see a nonet loss policy as he thinks it is more reasonable. Representative Ogan said he believes it would be more manageable for the department and everybody concerned to identify areas that need to be opened. Number 2292 REPRESENTATIVE AUSTERMAN said because of the way the bill is written, he would have to support the amendment. It makes it a little more realistic, in his eyes, but he is not necessarily supporting the bill. If the bill does pass, he believes this will a be at least a step in the right direction. CO-CHAIRMAN GREEN asked Representative Ogan if his amendment would also apply to page 3, line 15, in that "three times" would also be deleted. REPRESENTATIVE OGAN answered in the affirmative. Number 2330 REPRESENTATIVE DAVIES said he is going to support the amendment because it moves in the right direction, but it doesn't move far enough, in his view, to rectify all the problems of the bill. He said, "The idea of nonet loss is - I think, you know - under reasonable restrictions can get totally abused in this (indisc.) whole issue, it's surrounding this issue and others are gonna just invite enormous numbers of lawsuits, but having said that the amendment clearly doesn't make it any worse." CO-CHAIRMAN GREEN called a brief recess at 9:03 a.m. The meeting was called back to order at 9:08 a.m. Co-Chairman Green asked that the record reflect that Representative Nicholia had joined the meeting. Number 2366 REPRESENTATIVE OGAN reviewed Amendment 1 for the members that weren't present earlier. CO-CHAIRMAN GREEN asked if there was an objection to the adoption of Amendment 1. Hearing none, Amendment 1 was adopted. CO-CHAIRMAN GREEN said at the previous meeting on the bill there was discussion regarding page 3, relating to limiting the public officials. There was a discussion about inserting after the word "official" on line 19 and line 21 "other than a member of the Board of Game." He asked if that was still the wish of the committee. CO-CHAIRMAN WILLIAMS said he had thought the committee had already made that change. CO-CHAIRMAN GREEN said he also had thought that had been done, but he got input from other committee members that it hadn't been done. Number 2452 CO-CHAIRMAN WILLIAMS moved that the previous stated amendment be adopted. TAPE 96-71, SIDE B Number 001 CO-CHAIRMAN GREEN stated the amendment. On page 3, lines 19 and 21, after the word "official" insert "other than a member of the Board of Game." Co-Chairman Green said, "And I don't know whether you were here, Representative Nicholia, when George Utermohle, the drafter of the bill, explained that while that still leaves a significant number of people potentially liable that it would -- and we asked him specifically `Would that just mean...' oh, George is still here, I'm sorry. I'll see if I can get this right - that it would only apply to this specific action and not to any kind of damages, punitive or otherwise." REPRESENTATIVE DAVIES pointed out that the committee further heard that if the public official believes that they're acting under the best interest of the state of Alaska and the sustained yield in the constitution and they continued not to follow the order of the court that they could be held in contempt of court. CO-CHAIRMAN GREEN indicate that was true. REPRESENTATIVE DAVIES said if the court viewed the management activity as rational or not, it might not be relevant if this bill prescribes and irrational action. CO-CHAIRMAN GREEN added that the person involved would stay with the decision. Number 073 REPRESENTATIVE OGAN said he would speak against the amendment. The Board of Game are the people that pretty much make the calls regarding these situations. He said, "We've already declawed some of the bill with making it one for one and I don't think we need to defang it either." CO-CHAIRMAN GREEN said, "By voting against the amendment you would be allowing specific...." Number 098 REPRESENTATIVE OGAN withdrew his objection. CO-CHAIRMAN GREEN asked if there was an objection to Amendment 2. Hearing none, Amendment 2 was adopted. He said, "We've dropped it from nonet loss and we've excluded the Board of Game from the... We've put them back, I guess, where they were. We haven't excluded them from the protection they now enjoy." He asked if there was any discussion about the bill as it has been amended. Number 125 REPRESENTATIVE OGAN said he would appeal to the members of the committee that over the years we've lost millions of acres of hunting opportunity. It continues to be eroded by actions taken by state officials and various special interest groups. He said if we want to continue the loss of what has been traditional lifestyles and resources in this state then we shouldn't support the bill. Representative Ogan asked for support of the bill. Number 169 WAYNE REGELIN, Director, Division of Wildlife Conservation, Department of Fish and Game, came before the committee members. He pointed out that the Board of Game does have a nonet loss policy for loss of hunting areas that they passed three years ago. Mr. Regelin they have instructed the department to go back and find all areas that are closed for various reasons to see if they can be opened again. He pointed out that at their last board meeting they did that. He referred to the Delta closed area, which had been closed for many years, and said it was much bigger than necessary so they reduced that in size so that it is just around the town of Delta. Mr. Regelin said he would urge the committee to look at the record of the Board of Game's March meeting. He noted he has some summaries of the actions that the board took. Mr. Regelin said he can't see how the hunter feels unbalanced. They got a lot more opportunity to do this. There were three areas that were restricted. One was in the Wasilla area and was restricted by request of the advisory committee from Wasilla and the borough. It was made a bow only area. He noted the area was right around the residential areas and has also been done in Fairbanks and other places. Mr. Regelin said another restriction was the use of air boats around the Nenana area. That was restricting a method access. He noted the department didn't take a position on that restriction. MR. REGELIN explained the third area where there was a restriction was on the North Slope. He explained the board, at the department's request, restricted the moose season on vast areas of the North Slope. The board closed a huge area to moose hunting. The area closed is much bigger than necessary. This is an area that is right on the fringe of the range of the moose population and they just use the river valleys. Rather than name every river valley, they closed the whole larger area. This is a moose population that has declined about 50 percent in the last three years. He said the department isn't sure why, but it is probably just because it's on the fringe of its range and they fluctuate as most species do. He pointed out that 25 years ago there were no moose in this area. Mr. Regelin said he thinks that all the areas where we have moose in Alaska that can support a harvest are open. The only exception would probably be some of the state parks near Anchorage. He said they might be able to open pieces of the Chugach. The other would be the hillside area which gets to be very controversial. Beyond that, he isn't sure where you would open an area to replace this restriction. He said the alternative is that they get sued and then he doesn't know what happens. MR. REGELIN said he wanted to explain that this requires the management of maximum sustained yield throughout Alaska. There are areas that we don't manage that way. For instance, Unit 9 is a great area for brown bear hunting and there are lots of bears in the area to maximize the harvest. Because of that, we have a lot smaller moose population than we could if we would reduce the bear population. Those are decisions that were made many years ago by the boards. Another place this is done is in the Tok sheep management area where there is a trophy area where they restrict access - a number of permits, and the Delta walk in sheep hunting area. He said, "We won't be able to do those any more because the way this is structured, it guarantees access for hunting. Like Mr. Utermohle said `It's in the eye of the beholder what you're gonna sue on.' But if a hunter says, `I'm guaranteed access to the Tok sheep trophy area,' and he doesn't draw a permit, we're gonna lose the way this is structured. And I think it's pretty poor legislation and I think that you need to look at the record of what's really going on rather than to listen to people who have an agenda that they do not want to share the wildlife of Alaska." Number 403 REPRESENTATIVE OGAN said he finds it rather unusual for Mr. Regelin to make the comment "Do no want to share the wildlife with Alaska." When you're managing primarily for hunters, that means there is a lot of animals around which means that the people who wants to view them has them available to view as well. MR. REGELIN said in Alaska, we manage primarily for hunting in almost all areas. There is a few areas that are available for wildlife viewing and they've been sanctuaries, Pac Creek and McNeil River. He said he thinks those are important areas that benefit hunters. The next bill on the agenda would allow the department to not spend any money on that activity. In most areas, hunting is very compatible with wildlife viewing and the department works hard to make sure that areas don't get closed down for that reason. When you mandate that you have to manage throughout the state for maximum sustained yield, there are many other beneficial uses for trophy hunting, for having good bear hunting areas and for having high quality hunts. All of the control use areas that we have around the state are for very good reasons. He noted there are some that he doesn't agree with personally, but the Board of Game passed those at the request almost always of the public because that's how they want their wildlife to be managed. Number 533 REPRESENTATIVE IRENE NICHOLIA said one thing she learned while growing up is that the people living in the area were the best biologists because they know the land, they know what's out there and they hunt those populations every year. She said she learned a lot from her father. Her father new best about where the caribou populations were going. He could tell her when the populations were down, if they were too far back or if they were migrating south. She said when she looks at the controlled use areas, she knows they're put there for reasons by the advisory councils for those different areas. Representative Nicholia asked if the amendments that have been adopted would eliminate those restrictions. MR. REGELIN said he thinks in areas where the board will say that consumptive use is an important use of the wildlife resource, which will be over time almost all of Alaska, yes that will require that we won't be able to use those types of controlled use areas anymore because it would restrict access. The bill is very specific about not allowing access to be limited for hunting. Number 639 REPRESENTATIVE AUSTERMAN said his personal opinion is that this is poor piece of legislation and he doesn't plan on voting to move it out of committee nor would he vote for it on the floor, especially in its present form. He said he thinks we are going out and usurping the power of the Board of Game by legislation and he has a problem with that, just as he would have a problem with going out and setting fishing limits on major river streams by legislation rather than letting the Board of Fish take care of that. Representative Austerman said by passing this type of legislation could lead to setting aside one for one or one for three pieces of property in the timber industry as well. If you're going to close an area for timber in one area, lets open to three areas somewhere else. He continued to give examples and said he sees all kinds of things we could do with this type of legislation; therefore, he opposes it and will object to it moving out of committee. REPRESENTATIVE OGAN pointed out the bill is one for one and not one for three anymore. REPRESENTATIVE AUSTERMAN said he understands that. Even one for one, he thinks it is a bad piece of legislation. Number 733 CO-CHAIRMAN GREEN said, "Well, I think in interest of time, it appears that we probably should do a little more thinking on this, so I'm going to hold the bill in committee and review it a little bit more."
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