Legislature(1995 - 1996)
05/01/1996 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
CSSB 262(RES) (ct rule fld) - MANAGEMENT OF FISH/GAME POPULATION & AREA CO-CHAIRMAN GREEN announced that CSSB 262(RES) would be the next bill for consideration. Number 868 REPRESENTATIVE ALAN AUSTERMAN noted that he had spoken against the bill last week and would probably continue to have opposition, but a number of legislators had contacted him with reference to their wishes to have the opportunity to vote on this legislation on the House floor. Therefore, he was going to withdraw his objection to voting it out of committee. CO-CHAIRMAN GREEN noted there had been some minor changes made. The committee had before them proposed Committee Substitute, Version O. REPRESENTATIVE OGAN made a motion to adopt Committee Substitute, Draft 9-LS 1431\O, dated 4/29/96 as the working draft. Hearing no objection, it was so ordered. Number 938 REPRESENTATIVE IRENE NICHOLIA inquired if the Department of Fish & Game was going to comment on the Committee Substitute just adopted by the committee. CO-CHAIRMAN GREEN asked Wayne Regelin if he wished to comment on the Committee Substitute? Number 955 WAYNE REGELIN, Director, Division of Wildlife Conservation, Department of Fish & Game, said, "I think the CS changed it from replacing one acre for one acre rather than one for three and then took out some of this where you were going to guarantee any lawyer that sued us that they'd get rich." That helps a little bit, but he didn't think it solves the basic problems the department has with the bill and they are still very strongly opposed to it. He said the Department of Law had some concerns about the trust relationship. It's the first time it would be in statute and he had expected a representative from the Department of Law to be present at this hearing. CO-CHAIRMAN GREEN noted this committee had also expressed some concern about the trust aspect. Even though the "almost invitation" to litigation only deals with closing, there is still a concern if it also energizes further litigation. He had expressed his concern at the previous hearing and still maintains that concern. Number 1034 REPRESENTATIVE DAVIES asked Mr. Regelin to comment on the harvestable surplus, highest levels of human harvest and maximum sustained yield definition. MR. REGELIN responded, "I think those definitions, tied together, would require the department in areas that are going to be managed for intensive purposes to harvest one-third of the number of animals born each year. Our feeling is that it's very difficult to achieve that in most areas of Alaska. We approach it on areas where we don't have any predators, such as on the Army bases in Anchorage and that place, but in most areas of Alaska where you have severe winters in the farther north in those areas, that it's just not a level of harvest that's sustainable over time. Even if we would reduce the wolf and bear populations to very, very low levels, we probably couldn't achieve that level over time because of the severe winter weather we have. So we have some real concerns with that. It's the same language and definitions that were in SB 77." REPRESENTATIVE DAVIES commented that he was trying to contemplate how the department would manage this if it's simply an unworkable level. Based on Mr. Regelin's testimony that these goals were simply unattainable, he wondered if in Mr. Regelin's view, there would be litigation as a result of not meeting those goals. MR. REGELIN said if this became law, the department would do their very best to achieve those goals. They would probably reduce the wolf and bear populations and see what they could maintain. He didn't think that biological reality could be mandated by legislation; the department would probably not achieve it and then he'd probably get sued according to the way this bill is drafted. Number 1214 REPRESENTATIVE DAVIES said, "I guess the next question I had is in terms of this opening up new habitat that's called no net loss features of this and based on restrictions -- is it your reading of this bill that even a change in the methods of access would be viewed as a restriction, if the change were to eliminate one method of access?" MR. REGELIN replied yes, he thought it's very clear that is what this law does. REPRESENTATIVE DAVIES asked if in Mr. Regelin's view it was possible to find one for one? What are the typical sizes of an area that those kinds of changes and restriction might apply to and would those comparable areas be available within the geographic regions all over the state? MR. REGELIN said the way the Board of Game usually does that is when they make regulations, it's a good sized area for the convenience of the hunter. He noted there are 26 game management units in the area, many with sub-units, so often it's done on a sub-unit basis. In certain places where it's not necessary, it's restricted by portions of the sub-unit if there's rivers or roads that allow the hunter to know where they're at in the woods. These areas are typically large. For example, on the North Slope where the moose harvest was restricted in a big area even though the moose are only along the river corridors and to find a replacement for that size that the Board of Game could look at just doesn't exist. He thought the result would be that the Board of Game wouldn't be able to restrict because there's nothing else to open up. He noted the Department of Law is looking at this and may be able to provide additional information. Number 1323 REPRESENTATIVE DAVIES referred to page 4, line 15, which states, "The Board shall adopt regulations guaranteeing access to and for continued consumptive uses" and asked if that was a similar kind of restriction against any kind of restrictions? MR. REGELIN said he thought the guarantee of access is a different part of the bill and has its own special problems in his mind because in many areas they allow hunting but they restrict it by the number of permits. If the opportunity to hunt is guaranteed in statute, he didn't think the department could by regulation restrict them by permits. So in many of the trophy areas or where they have to limit the number of animals taken, they probably won't be able to do that. The other alternative is shorter seasons which presents a "Catch 22" situation because if the season is shortened, then another place has to be found to replace that. Number 1382 CO-CHAIRMAN GREEN said, "On that same idea, under harvestable surplus, where it talks about excluding those animals that are taken for predation and human harvest, am I misreading that or does that lead to a convolution of reducing the number of game?" MR. REGELIN replied, "Over time, you would be mandated by the regulation to always harvest one-third of the number born less those that die from natural causes other than predation. And when you have severe winters and you lose 10, 15 and even 30 percent of the populations at times, you wouldn't be allowed to reduce the harvest levels to allow the herds to rebuild. That's one of the basic concerns we've had with this language from the beginning. I should also say on the closure of these areas where restrictions, there's a clause in there that says, `except for biological emergencies' so what that means, I'm not sure. The Board of Game doesn't manage by emergency, they try to think ahead so I would think it would be difficult to say that the board was taking this action for an emergency. Now the department has emergency authority to close seasons when we reach certain harvest levels or something unusual happens, so I don't think they'd be restricted in that case because we call it emergency order. I'm not sure if that's what they meant or not - the drafters." CO-CHAIRMAN GREEN remarked like the severe winter when there were so many killed by the railroad and also by freezing, etc. MR. REGELIN thought the goals of the bill were to ensure higher harvest levels which he didn't object to, but he didn't think the means of getting there in this case were not very wise. Number 1491 REPRESENTATIVE DAVIES asked, "Do you think it's possible that this bill might have the opposite result in the sense that -- I'm trying to envision being on the Board of Game and contemplating increasing access to an area where suppose the population has increased and you wanted to maybe add another method of access or add to the length of the season - I might under the terms of this bill, be pretty uncomfortable with making those additions when I knew that if I had at some point in the future to produce that, I would be prohibited from doing that. Wouldn't this actually - I think in some respects have a dampening effect on opening up access when there was some possibility that you might have to withdraw that three or four years in the future?" MR. REGELIN said it was a possibility that the Board of Game would be reluctant to take a short term opportunity to harvest more wildlife because in the long term, that level couldn't be sustained. He added, "Or for instance in Unit 13, where we're trying to reduce the caribou population and harvest, I think 15,000 caribou this year, if they're going to be forced to maintain that harvest level some way, they probably wouldn't be able to do it. They probably wouldn't do it in the first place." Number 1567 REPRESENTATIVE OGAN said this subsection does not apply to temporary closure based on biological emergency. If it's a tough winter, it means that's a biological emergency. There is still latitude in this legislation to manage wildlife. Section 1 says that it's to be managed solely on a biological basis. The legislation simply says that if an area is going to be closed, it has to be closed for a good reason; not because some special interest group wants to have the area closed. Number 1626 MR. REGELIN said he agreed that that's probably what the intent of the bill is, but individuals from the Departments of Fish & Game and Law who have analyzed the bill believe these are real problems and the department would probably end up in court. Number 1647 CO-CHAIRMAN WILLIAMS referred to the deer and timber in the Southeast area and asked how this would affect the timber industry. MR. REGELIN said he didn't think it would have any affect on the timber industry, but the Department of Law had some concerns with the trust language so perhaps they should address that question. Number 1683 REPRESENTATIVE NICHOLIA asked how this legislation would affect the controlled use areas, which in her district are used to rebuild their big game populations. MR. REGELIN responded, "The way that we feel the bill is structured, and it guarantees access by different methods and means, that you wouldn't be able to do that. I'm not sure that we wouldn't be able to maintain the ones that are in place now, but new controlled use areas that restrict methods of access - I don't think they'd be allowed because it's very clear that you can't restrict methods of access except to protect habitat. You can't do it to use methods of access to restrict harvest." Number 1735 REPRESENTATIVE NICHOLIA commented, "Then, if we can't use controlled use areas then you're probably going to tell me that we can't use the restricting the human consumption uses - restricting human uses?" MR. REGELIN thought the board would still be able to restrict seasons and bag limits but when they do, they would have to find another area to open. He added that if this could be interpreted that it's for a biological emergency, then they wouldn't have to do that. It's the language regarding the emergency that concerns him because he didn't think the actions taken by the Board of Game could be construed as emergencies. During his 13 years of working with the board, he recalled only twice when the board did emergency actions because of having to give advance notice of a meeting. Number 1815 REPRESENTATIVE NICHOLIA said, "I first got involved in fish and game activities since 1984 and then I learned that the Yukon Flats had a low moose population and they've been rebuilding every since. They had low moose populations across the whole Yukon Flats, so I don't see how that provision would help them because you don't really want to open up one part of it and restrict one part of it because then you would decrease the population in that one section some more. It says if you restrict one area, then you have to open up another portion of another area. I just don't see how that would work." MR. REGELIN said he thought it would be difficult for the board to do that because there wouldn't be other areas to open. Number 1868 REPRESENTATIVE NICHOLIA said under this bill if one area is restricted for moose for example, then another area is supposed to be opened up but what happens if the department doesn't open another area. MR. REGELIN said there are two things that would happen. The Board of Game would not be allowed to close the area or the Department of Fish and Game would be sued and he didn't know what the relief would be if there's no area to open. Number 1902 REPRESENTATIVE DAVIES said he was also concerned about the restrictions on the use of revenues. He referred to page 3 which includes a restriction on the utilization of revenue generated from taxes, license fees and other fees paid by sportsmen or funds received from federal aid in sport fish and wildlife programs and prohibits the use of those funds in an area where consumptive use of fish and game is not permitted or for the use for management of nongame species and asked how these funds are used and what the impact of this language would be on how the funds are used now. MR. REGELIN replied that since the department has lost their general funds, they are using fish and game funds which are license fees, to help manage areas like Pack Creek, Cramer's Field and McNeil River - although some of these are paid somewhat by user fees - this legislation would prohibit the use of fish and game funds for those in addition to prohibiting the use of those funds for work on endangered species or nongame species. He noted the department does a small amount of that now but mostly on species that are either endangered, threatened or being petitioned to be threatened. The reason they do that is that most of the time once they start doing the research, they find there are more animals than what people thought and the department feels the decisions on listings should be based on the best data available so they try to collect it. He thought the department had a good record of keeping lots of species that were petitioned to be listed or actually started through the process to stop them, like the goshawk in Southeast. Number 1992 REPRESENTATIVE OGAN asked if Mr. Regelin's discomfort would be eased somewhat if the language on page 2, line 7, regarding biological emergency was changed to biological basis? MR. REGELIN responded it would certainly make it better in that section about replacing the one for one. He would still have concerns about the guaranteeing of access to hunt and no restrictions on access by any kind of methods and means. He was proud of some of their trophy areas and the walk in areas for trophy management and quality hunting experiences where access is restricted by various means and he would hate to lose those. Those are areas were put in by hunters working in conjunction with the department and he felt it was something that Alaska should continue to offer to the hunting public. Number 2055 REPRESENTATIVE OGAN asked if it was Mr. Regelin's contention that they would lose controlled use areas? MR. REGELIN said, "When it guarantees access to hunting and you guarantee something in statute, and then I say that only 10 people can go or 100 people - or the Board of Game does - you're no longer guaranteeing and the one hundred and first person can sue us, the way I read it." Number 2077 REPRESENTATIVE OGAN said if it's managed on a biological basis and then determined for biological reasons that only 10 people can go in there, then that's a legitimate restriction. He asked if that was correct. MR. REGELIN replied that was a completely separate part of the bill and the lawyers would need to explain whether that was a possibility. He thought controlled use areas are used as a tool for the Board of Game to help spread out pressure and for a whole variety of reasons to protect the local users and give them more opportunities in places. He thought those would go away. CO-CHAIRMAN GREEN asked if the committee had any other questions of Mr. Regelin. Hearing none, he called on Kevin Saxby to testify. Number 2126 KEVIN SAXBY, Assistant Attorney General, Natural Resources Section, Department of Law, said he was assigned to both represent the Board of Game and in Anchorage does most of the work for the Division of Forestry, also. He stated, "I want to assure you that we haven't yet spotted all the legal issues on this bill yet, but there's a few important ones that the department thought that members might want to be aware of as they engage in final debate on this. The first one, probably the most important one we've spotted so far is this public trust issue that Wayne has just talked about a little bit. The public trust doctrine is that an established - it's a term of art in the law and when you buy into that language, you're buying into - just by the fact of using it, you're buying into many, many decades of jurisprudence on that issue. There's already a lot of law on the public trust doctrine. Being the person who both defends timber sales that are planned by the Department of Natural Resources (DNR) and who defends the decisions of the Board of Game, I can tell you that I'm uniquely (indisc.) to explain to you some of the ways that the public trust doctrine might be popping up in the future." Number 2196 MR. SAXBY continued, "One of the ways that we've often seen it in litigation in the past is when anti-development proponents want to halt, say a timber sale or some other commodity use of resources, they'll come in and argue that the wildlife in that particular area or some other resource on the land in that particular area must, under our constitution, be managed as a public trust and that the (indisc.) agency hasn't given sufficient consideration to the public trust value - the higher values that are implicated if you have a public trust there. (Indisc.) the Department of Law has successfully defended against that kind of an argument by arguing that the public trust doctrine historically applies only in navigable waters. It doesn't apply on the land. To my knowledge, this is the first time that the public trust doctrine would be exclusively applied on the land. So the point is I guess, I think that you need to be aware that if you decide to use this kind of language and for the first time take the important step of applying the public trust doctrine on land, you'll be taking a tool away from the Department of Law that we've used to defend disposals of resources in the past and handing a tool to those who would want to delay government action or prohibit it." Number 2279 MR. SAXBY stated, "The second issue is, as Wayne pointed out, this issue about some of the definitions and he pointed out the biological implications of the maximum sustained yield and harvestable surplus and highest level of human harvest definitions. I just want to add to that that because these will be viewed as implementing the sustained yield clause of Article VIII, Section 4 of the State Constitution, there's a pretty strong chance that these will eventually be interpreted as what sustained yield management means for game resources. And that's really an important step to take and given that the record is that this isn't what managers have in the past thought of sustained management as, it's a really narrow definition of sustained yield management. It will have very broad implications. To the extent that these definitions are equated with sustained yield management, they could have very broad implications requiring severe re-thinking of most game management (indisc.) that appear to have been accepted as appropriate." Number 2306 MR. SAXBY further stated, "The third issue I wanted to point out very quickly for you is the citizen suit provisions. There are two -- I realize I may be looking at a version of the bill that perhaps has changed recently, although I think they just tried to get me the most current draft -- but as I read it, there are two citizens suit provisions both of which allow suits to be brought against public officials other than members of the Board of Game to enforce the other provisions of the bill. There are some problems in that. The first citizen suit provision on - in my version, it's on page 2, beginning at line 8, authorizes citizens to sue public officials other than members of the Board of Game for an injunction to compel compliance with the preceding section. The preceding section says that the Board of Game and other state agencies, if they close areas, must open other areas. Well, I'm (indisc.) this provision authorizes is a suit against someone for action that the Board of Game has taken - someone who is powerless to change the action of the Board of Game. That problem could possibly be fixed by changing language somewhere. But the underlying problem is still there which is that's it's generally the Board of Game that adopts means and methods, seasons, bag limits, all the restrictions applicable to hunting and it's just inappropriate to authorize suit against other state officials when it's the Board of Game itself that's (indisc.). Of course, I'm not recommending that you change the language and allow suit against the Board of Game. I think if that were the case, you'd have major problems recruiting and keeping good Board of Game members. The second citizen suit provision has basically the same problem." In an attempt to keep his testimony brief, he reiterated that he hadn't identified all the issues. He offered to answer any questions the committee might have. REPRESENTATIVE RAMONA BARNES joined the meeting at 8:55 a.m. Number 2388 CO-CHAIRMAN GREEN asked if there were any questions of Mr. Saxby. Number 2392 REPRESENTATIVE DAVIES said, "Under these -- the possibility of bring suit against public officials -- just suppose that an area was closed or a method of access to an area was restricted and then somebody sued to open up an equivalent area and the cognizant public official could not find an area to open that was equivalent in size. What would then ensue?" Number 2419 MR. SAXBY replied, "We'd be faced with a couple of problems. First of all, there'd be so much - depending on which public official was sued, let's say it's Wayne as he was talking earlier, one of the first points that would be made, I guess is that Wayne doesn't have authority to open and close areas except in cases of biological emergency, like he earlier testified. So it (indisc.-coughing) to sue him, although there'd be a lot of confusion because this statute purports to authorize people to can sue him. The next issue raised would be if we're dealing with the right person - someone who does have authority to open an area and we still can't find an area large enough, it becomes a question of reconciling a constitutional sustained yield management mandate with this statutory mandate to open up areas and we'd have to do some real work in preparing the defense of that case and get the department and perhaps the board and perhaps others to look at establishing a record proving that there is no where else in the state that can be opened up to the use that was closed down for biological.... TAPE 96-73, SIDE B Number 001 MR. SAXBY continued..."I'm kind of saying this off the top of my head, but that would be the first place I would advise the decision makers to look - at reconciling the Constitution with the statute." Number 015 REPRESENTATIVE DAVIES inquired given the complexities discussed by Mr. Saxby, is it his opinion that if this bill were to be enacted into law that it would invite numerous lawsuits and they would be fairly expensive to defend. Number 026 MR. SAXBY said he agreed with that. He thought the citizen suit provisions in this bill are among the strongest that he's ever seen in statute and as others have mentioned, that is essentially an invitation to sue. Number 044 CO-CHAIRMAN WILLIAMS asked Mr. Saxby to explain how this might affect the timber industry in Southeast or anywhere else for that matter and how this might affect a challenge on the timber sale. MR. SAXBY responded that he was currently defending (indisc.) decision to conduct salvage logging on the Kenai Peninsula. A number of different organizations have challenged the entire five- year schedule and also each individual timber sale that was proposed last year - a total of, he thought 10 or 11 sales to try to deal to some extent at least with the bark beetle infestation that's ongoing there. He pointed out, "That the bark beetle infestation is the worst or one of the worst places and one of the places where a lot of those sales have been proposed and have actually been initiated, is in the southern part of the Kenai Peninsula adjacent to or actually within the Rich Creek critical habitat area. Of course, this bill deals a lot with what gets to happen in critical habitat areas." He noted that one of the arguments made by the environmental organizations and other groups who want to halt the timber sale or perhaps halt a proposed mine or some other commodity use is that the Department of Natural Resources has failed to consider other uses or failed to adequately consider other uses or failed to adequately allow for other uses. Their hand in making that argument is greatly strengthened to the extent that those other uses are recognized as coming within the rubric of the public trust doctrine. In the past, these groups have argued that these were public trust type concerns and we've defeated them by and large by saying the public trust doesn't apply here; it's never been applied here and it shouldn't be applied here now and it doesn't (indisc.-coughing) apply here by any law or by our Constitution. What this would change is that this now explicitly does apply public trust principles to what many would view as competing uses to logging or mining or some of the commodity uses. It strengthens their arguments. Number 147 REPRESENTATIVE DAVIES referred to page 4, line 15 which is a new instruction to the Board of Game to adopt regulations that would guarantee access to and for continued consumptive use and asked Mr. Saxby to comment on the possibilities for lawsuits under that language with respect to trophy areas and other areas where for some reason there exist restrictions at the present time. MR. SAXBY replied that he agreed with Mr. Regelin that it certainly raises questions about the continued validity of areas that have limited access regardless of the way that access is limited. He pointed out that in many, if not most of the trophy areas, the restriction was not entered based on a biological justification or at least not solely a biological justification. Often it was an allocation decision not solely based on biology but based also on managing competing types of allocated uses. He said that's also a reason for a lot of controlled use areas. For example, providing reasonable opportunity for subsistence as opposed to sport hunting where the board finds that one or the other of those uses is more important in that particular area. He agreed that it would increase the likelihood of lawsuits. He commented there was another problem with that provision and that is that it's always been thought that the Board of Game doesn't have authority over most state land to guarantee that anything happens on that state land. The Board of Game has authority to control means and methods of hunting but this language that says the Board of Game shall adopt regulations to guarantee access to land would throw a wrench into the works when they're trying to decide whether it's DNR, the Board of Game or what agency has the authority to decide what happens in this particular area. He recommended that some thought be put into some qualifying language in that area. CO-CHAIRMAN GREEN noted that Steven Daugherty from the Attorney General's Office was present to testify. Number 270 STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources Section, Department of Law, testified that he is the lead attorney for the Alaska Board of Fisheries and wanted to point out that there are a few fisheries implications of this bill as well as game implications. He said, "The Board of Fisheries allocates between competing user groups and this includes non-consumptive as well as consumptive sport uses. The Board of Fisheries also closes areas to fishing and these are not always on a biological emergency basis. This is sometimes on a habitat basis trying to protect the habitat for the long term conservation of the stock. The Board of Fisheries recently adopted regulations allowing the closure of areas along the Kenai River and they felt these regulations were critical to the long-term preservation of king salmon in the Kenai River. This bill would have definite negative implications for that. A lot of those areas along that river might fall into some of these areas. They've been purchased - some of this Exxon Valdez restoration funds have been used to purchase areas and with the goal of defining these areas as critical habitat just so they can protect the habitat, protect spawning areas for salmon." Number 329 MR. DAUGHERTY continued, "The Board of Fisheries has a number of catch and release trophy type fisheries where you can only keep a trout if it's above 30 inches or under 12 inches, where the majority of the trout fall into the 12 to 30 inch range and you cannot retain them for consumptive use because in these areas the Board of Fisheries is trying to promote trophy fishing. It's a big draw for sportsmen to come to Alaska to fish and for Alaska sportsmen to get out and get a trophy fish. Without the ability to do this, there will basically be no trophy fish. If the board has to regulate for consumptive use, they won't be able to regulate to allow the development of these trophy fish that have to stay in the system for years in order to reach that size." Number 369 MR. DAUGHERTY said, "Kevin Saxby has touched on most of the issues with the public trust doctrine; however, I would note that the public trust doctrine is being applied to a fund here as well as just applying it to land and you're implicating all these funds that come in for our sport fish and this might - I can't say right now - the public trust doctrine is such a fuzzy issue that's out there. There's so much case law on it; it can be applied in some many different ways, but it's possible that if you were saying that there's a public trust to support fish funds, this could have negative implications for commercial fisheries. The Board of Fisheries might be required as a result of some lawsuit that might arise to restrict commercial fisheries in order to protect that public trust that is being assigned to the sport fish funds." Number 400 MR. DAUGHERTY remarked, "I also wanted to touch on one other point. It's not relating to the Board of Fisheries but to the biological emergency clause. The Alaska Supreme Court does look very narrowly on what constitutes an emergency and that language does present problems." He offered to entertain questions from the committee regarding the Board of Fisheries. Number 415 CO-CHAIRMAN GREEN commented that Representative Ogan had indicated there might be a change on page 2, line 7, which would change "emergency" to "basis" and asked if that would alleviate the last problem discussed by Mr. Daugherty? MR. DAUGHERTY said, "That would help with the emergency thing. I don't think that particular clause would apply to management of fisheries; however, I can say that it would prohibit - if you were doing things on a biological basis that would not allow you to develop these trophy fish. That would be something that would be ruled out because that's not something that is biologically necessary in order to promote maximum sustained yield. It is something that would actually decrease the pounds of fish that are harvested when you manage for trophy fish." Number 451 CO-CHAIRMAN GREEN said it appears that other than the fact that there may not be lands, river banks or types of lands available to go along with this, most of the problems that have been raised are of a legal nature. Inasmuch as the next committee of referral for this bill was the Judiciary Committee, he thought that would be the appropriate place to address the legal problems that have been raised. He asked Mr. Daugherty what would happen in a situation where River A is a fantastic fishing area but because it's being over fished, you restrict or maybe even close and you would make another area and there isn't another area like that. What happens when you cannot do what is physically do what is required? MR. DAUGHERTY wasn't sure what the courts would do in that situation. He added that in the fisheries area, nearly every area in the state is open to fishing. The Board of Fisheries only closes areas traditionally when there is a problem in that area and since most of the waters in the state are open to fishing, there isn't any other area that can be opened up because everything is already open that can permissibly be open without threatening the stocks. Number 520 REPRESENTATIVE OGAN stated, "On that point, I believe that - you mentioned that I was considering - I'd like to move an amendment when it's time to delete that "emergency" word from Section 1 and then if there was a biological basis for closing an area through the depletion of stocks or whatever, then they wouldn't be forced to open another area in the same geographic area if there wasn't another area to open. It would give them a little bit more of a management tool. I think the intent of the bill is simply to try to keep no net loss for hunting areas unless there's a biological reason to close an area. That's simply the intent. I think it's a laudable goal. If we soften that language somewhat, it would give them some more latitude. Whenever you're ready for an amendment, I'll be moving that amendment." CO-CHAIRMAN GREEN remarked that an amendment at this point might be helpful. Number 574 REPRESENTATIVE OGAN made a motion to amend page 2, line 7, delete "emergency" and insert "basis". Page 2, line 7 would then read "does not apply to a temporary closure based upon a biological basis." CO-CHAIRMAN GREEN asked if there was discussion or objection. Number 666 REPRESENTATIVE DAVIES objected for the discussion purposes. In conjunction with that, he inquired what "temporary" means. Number 676 REPRESENTATIVE OGAN said "I would interpret temporary as - for example to get into a situation, let's use the Nelchina Caribou Herd - it's a rather well known situation. They've gone into a tier-2 hunt, but if there's a depletion of a particular game or fish, they can temporarily close an area to let the stocks replenish for a biological basis. This clause gives them the ability - they don't necessarily have to reopen an area in another area immediately if it's a biological reason they're closing it. If there's another reason - political reason or special interest pressure group, ecotourism or whatever - that wouldn't be allowable but if it was simply for a biological basis, they would not have to reopen another area of equal size under this clause and hopefully, allow them to replenish the stocks and manage the game and fish or whatever, and when it's back to a level that can harvested again, then open it back up." CO-CHAIRMAN GREEN thought that whatever the biological basis was for closure would determine how temporary, temporary is. Number 695 REPRESENTATIVE DAVIES asked how that is different from what the department is doing right now. REPRESENTATIVE OGAN said there are some areas that are being closed by the Board of Game not for biological reasons. For example, the Paint River area for brown bear hunting. There's been a long history of three bears in that area for decades. There's an abundance of bears there and no biological reason to close that area; it was simply for political reasons and ecotourism reasons. REPRESENTATIVE DAVIES inquired if ecotourism would not be a valid reason to take any particular Board of Game action. REPRESENTATIVE OGAN remarked it is Board of Game, not Board of Tourism. REPRESENTATIVE DAVIES said, "Suppose that the residents of an area came and asked to have the means of access altered for their own economic reasons, but it turned out it was not a biological reason; it was an economic reason. Would that be prohibited under this?" REPRESENTATIVE OGAN commented that he is not an expert on this, he didn't write this legislation. He commented there had been a lot of areas closed in Alaska. He thought there was 40 million acres off limits for tourist reasons and various other reasons and the hunters are saying enough is enough. If an area is going to be for any reason other than a biological reason, then another area of equal size should be opened up. It noted it was originally three times bigger, but was softened to one for one. He asked if that area for example, in Paint River was not closed, would it affect the number of bears and the quality of experience there? He didn't think it would; there's still a lot of bears in that area. It hasn't affected it in the past. It's become an incredibly attractive tourist attraction, which he felt was a good thing. There has been hunting in there for many years and it hasn't affected it. He asked is there a biological reason to close that area down? If the bear population takes a crash, then absolutely it should be closed down and the tourists will benefit from that. Number 813 REPRESENTATIVE DAVIES asked if Mr. Regelin could come forward to answer some additional questions. CO-CHAIRMAN GREEN invited the assistant attorney general to join Mr. Regelin. Number 843 REPRESENTATIVE DAVIES asked Mr. Regelin to explain the effect of the word "temporary" and how would it differ from the present management? MR. REGELIN responded that he considers every action taken by the Board of Game is temporary in a way, because the next board can change it. There is nothing that is permanent versus temporary and it's not defined. The next Board of Game as it changes, can review the action and it's done on a schedule of every other year. He didn't think the word "temporary" meant a whole lot. Number 888 CO-CHAIRMAN GREEN inquired if on that basis, his earlier statement that "temporary" as it relates to page 2 would be dictated by whatever the biological concern was. MR. REGELIN said that was correct. He thought the board could change it as soon as (indisc.) changed or it could just be a different philosophy of the board, also. Number 905 REPRESENTATIVE DAVIES commented that with respect to biological issues, this would probably have no effect then on the way the board makes decisions. He asked Mr. Regelin if that was correct. MR. REGELIN said, "Temporary versus... REPRESENTATIVE DAVIES interjected, "In other words, if we change this wording so it reads `This subsection does not apply to a temporary closure based on a biological basis.'" MR. REGELIN replied, "I think what it would do is it would remove - if you make the decision for a biological basis, then you would not have to open another area equal in size somewhere else. If you made that closure for other reasons - social, political or whatever - then you'd have to find another area to open. And again, I guess the only area that I -- I think we're coming back to McNeil River and all the time I've worked on the Board of Game, they've closed an area to hunting that had been opened -- the Board of Game did -- and that was at the McNeil River area. That was not done for biology and we talked about it at great length with the board. It had been before them, I think, three consecutive meetings and it became a real divisive issue and an issue that was very harmful for hunters, in our opinion, throughout the Nation and the state because it was being exploited as making it look like hunters were really up there shooting bears at the falls. It wasn't happening, but that's the reason the board took that action. In that case, they'd have to find another area to open. The board did that. After they took that, they passed the no net loss policy of the Board of Game and instructed us to review all closed areas in the state and come back to them to open whichever ones we could. We've started doing that - that's why the Delta closed area was reopened at the last board meeting." Number 1013 CO-CHAIRMAN GREEN commented the committee had an amendment that should be acted on and most of the questions could be more appropriately addressed in the Judiciary Committee. He asked if there was other discussion relating to the proposed amendment. Number 1030 REPRESENTATIVE NICHOLIA requested the amendment be read again. Number 1035 REPRESENTATIVE OGAN explained the proposed amendment was on page 2, line 7, delete "emergency" and insert "basis." CO-CHAIRMAN GREEN asked if all committee members understood the amendment and if there was further objection. REPRESENTATIVE DAVIES withdrew his objection. CO-CHAIRMAN GREEN announced that Amendment 1 was adopted. Number 1056 REPRESENTATIVE NICHOLIA said she had a proposed amendment on page 3, line 7, insert "except for controlled use areas" after the word "game." She explained this addressed the concern she had raised earlier that this bill would wipe out the use of the controlled use areas which are used in her district to rebuild the big game population. She noted there have been moose population problems in her area and they have used the controlled use area to bring the population back up. CO-CHAIRMAN GREEN asked if there was discussion or objection to the amendment. Hearing none, Amendment 2 was adopted. CO-CHAIRMAN GREEN inquired if there were other amendments or discussion. Number 1119 REPRESENTATIVE NICHOLIA referred to page 2, line 8, and asked if a person couldn't bring a civil action suit against a state agency or a public official already? Number 1139 MR. DAUGHERTY replied that a member of the public already has the ability to bring an action if a state official is doing something that is ultra vires; that is something that is not within their statutory authority. However, he thought this provision was widening and inviting suit where it may even be a person who does not have the authority to do anything about the issue in question or it may be something that is within their authority and someone would have the ability under this provision to bring a suit. They probably would not have had the ability or been encouraged to bring that suit if this provision was not there. Number 1886 CO-CHAIRMAN GREEN said, "If that were the case and a person were not directly involved with this particular issue, would that be considered deleterious? I mean if you were going to sue the commissioner of health for something that -- there was a closure and this is actually talking about closure and opening another area -- would that actually hold then if they weren't in a position -- I mean, that's all this says is that it's that particular narrow issue. Or does it invite suit to other areas?" Number 1217 MR. DAUGHERTY said he wasn't certain if there's any situation where someone involved in the health area would be sued under this. He was certain there were cases in which state agencies that affect lands would be sued even though they do not have the direct authority to manage the game. If there's some type of land action that closes an area or closes an easement to access, that type of thing could result in a suit even though that person would have no authority to do anything about the game issues. CO-CHAIRMAN GREEN asked, "So would the suit then say that - you, person A don't have any authority under this bill but you litigated anyway, does that render it kind of neutral though. What would he lose and what would he be required to do because he doesn't have the authority to act under this legislation." MR. DAUGHERTY responded that anyone who sues under this would probably claim that they're a public interest litigant. CO-CHAIRMAN GREEN said he understood that, but he was talking about the person who doesn't have any authority to change it. MR. DAUGHERTY replied basically the state would defend that person and it would just be an expense to the state in defending that suit. The person who was suing would not bear any responsibility for attorney fees if they are public interest litigants, so they have no incentive to not bring suit while the state is going to be put to great expense in defending these officials even if the judge does dismiss it as soon as a motion is filed. CO-CHAIRMAN GREEN commented these issues should be addressed in the Judiciary Committee and asked if there were other questions. Number 1310 REPRESENTATIVE DON LONG referred to page 2, lines 11 and 12, and said it appeared to him that if this legislation is passed, we're inviting lawsuits, but if the legislation isn't passed, there won't be the lawsuits. CO-CHAIRMAN GREEN remarked that issue should be addressed in the Judiciary Committee. He agreed that it does invite litigation and while it may be dismissed as frivolous or even carried on, the person can't respond and couldn't be held accountable for any kind of damages. It's just that it's an expense that's incurred by the state. Number 1358 REPRESENTATIVE RAMONA BARNES made a motion to unanimously move CSSB 262(RES) as amended out of committee with individual recommendations with accompanying fiscal note. REPRESENTATIVE DAVIES objected. CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of the motion were Representatives Barnes, Kott, Ogan, Williams and Green. Voting against the motion were Representatives Davies, Long and Nicholia. Co-Chairman Green announced that HCS CSSB 262(RES) moved from the House Resources Committee with individual recommendations and accompanying fiscal note. CO-CHAIRMAN GREEN noted the committee would take a five minute at ease.
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