Legislature(1999 - 2000)
01/27/1999 01:07 PM 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
HOUSE RESOURCES STANDING COMMITTEE
January 27, 1999
1:07 p.m.
MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative Beverly Masek, Vice Chair
Representative John Harris
Representative Carl Morgan
Representative Ramona Barnes
Representative Reggie Joule
Representative Mary Kapsner
MEMBERS ABSENT
Representative Jim Whitaker
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
relating to initiatives regarding natural resources belonging to
the state.
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 3
SHORT TITLE: CONST. AM: WILDLIFE INITIATIVES
SPONSOR(S): REPRESENTATIVES(S) BUNDE
Jrn-Date Jrn-Page Action
1/19/99 16 (H) PREFILE RELEASED 1/8/99
1/19/99 16 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 16 (H) RESOURCES, JUDICIARY, FINANCE
1/27/99 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE CON BUNDE
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-4843
POSITION STATEMENT: Sponsor of HJR 3.
GEORGE UTERMOHLE, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801
Telephone: (907) 465-2450
POSITION STATEMENT: Answered questions regarding HJR 3.
ROD ARNO, President
Alaska Outdoor Council
P.O. Box 2790
Palmer, Alaska 99645
Telephone: (907) 376-2913
POSITION STATEMENT: Testified on HJR 3.
WARREN OLSON
5961 Orth Circle
Anchorage, Alaska 99515
Telephone: (907) 346-4440
POSITION STATEMENT: Testified on HJR 3.
PATRICK WRIGHT
P.O. Box 90386
Anchorage, Alaska 99509
Telephone: (907) 279-1340
POSITION STATEMENT: Testified on HJR 3.
PAUL JOSLIN, Executive Director
Alaska Wildlife Alliance
P.O. Box 202671
Anchorage, Alaska 99520
Telephone: (907) 277-0897
POSITION STATEMENT: Testified on HJR 3.
BOB CHURCHILL
3415 Wentworth
Anchorage, Alaska 99508
Telephone: (907) 279-8929
POSITION STATEMENT: Testified in favor of HJR 3.
JAMES BALDWIN, Assistant Attorney General
Governmental Affairs Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided history of the initiative in Alaska
and answered questions on HJR 3.
WAYNE REGELIN, Director
Division of Wildlife Conservation
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4190
POSITION STATEMENT: Testified on HJR 3.
ACTION NARRATIVE
TAPE 99-1, SIDE A
Number 001
CO-CHAIR SCOTT OGAN called the House Resources Standing Committee
meeting to order at 1:07 p.m. Members present at the call to
order were Representatives Ogan, Sanders, Masek, Barnes and
Joule. Representatives Harris, Morgan and Kapsner arrived at
1:20 p.m., 1:22 p.m. and 1:35 p.m., respectively, and
Representative Whitaker was excused.
HJR 3 - CONST. AM: WILDLIFE INITIATIVES
Number 029
CO-CHAIR OGAN announced the committee would hear House Joint
Resolution No. 3, proposing an amendment to the Constitution of
the State of Alaska relating to initiatives regarding natural
resources belonging to the state. Committee packets contained
the resolution; a sponsor statement; a memorandum from George
Utermohle dated January 18, 1999; and Alaska Supreme Court
Opinion No. 5066, January 15, 1999, in the case of Brooks v.
Wright, provided as an enclosure to Mr. Utermohle's memorandum.
Number 033
REPRESENTATIVE CON BUNDE, sponsor of HJR 3, came forward to
present the resolution. He told members the initiative process
was initially designed to work against politicians, but recently
it has seemed to be a tool of special interest groups, with
little grassroots participation. He emphasized that resource
allocation ought to be done through a scientific approach, by
people with a great deal of experience in the field, rather than
by what he called emotional, momentary majorities. Noting that
unfortunately Alaskan elections sometimes draw less than 40
percent of the potential voters, he suggested that 51 percent of
40 percent does not adequately determine public will.
REPRESENTATIVE BUNDE characterized the initiative process,
particularly in California, as a burgeoning industry, with
political consultants able to persuade people to vote for ideas
that may not stand the test of good scientific management. He
noted that Alaska courts had recently decided that the
legislature does not have the sole purview of deciding allocation
of Alaska's resources. Instead, the public can weigh in, and
Representative Bunde emphasized the need to ensure that they do
so on a well-informed basis. Noting that other states have tried
to make it more difficult to gather signatures by requiring
identification, for example, he said that has been thrown out by
the courts as a limitation of free speech.
REPRESENTATIVE BUNDE concluded by saying the process established
by Alaska's constitutional convention has stood the test of time
but needs a small tweaking in the area of resource allocation.
This would encourage participation but require a clear and
convincing majority showing the will of the public. He clarified
that this change would require that any allocation initiative
must pass by a two-thirds' vote of the people in a general
election, rather than by a simple majority.
Number 163
REPRESENTATIVE BARNES stated her understanding that in previous
court cases, the court held that the people could not allocate
resources such as fish that are in the purview of the
legislature. Alluding to Brooks v. Wright, relating to an
initiative prohibiting use of snares to trap wolves, she asked
George Utermohle whether this is the first case he knows of where
the courts have held that resources could be allocated or managed
through the initiative process. She mentioned the Beirne
Homestead Initiative, saying the courts had held that state
resources couldn't be disposed of through the initiative process,
and she further recalled an initiative regarding the utilization
of fish that the courts threw out. She asked how those cases
relate to this wolf snaring initiative.
Number 187
GEORGE UTERMOHLE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, replied that the cases
relating to the Beirne Homestead Initiative and the F.I.S.H.
[Fairness in Salmon Harvest] Initiative were both struck down in
the courts because they involved what the court viewed as an
appropriation. There is an express prohibition in the
constitution about the people enacting an appropriation by
initiative; the court has construed the term "appropriation" very
broadly to include not only the appropriation of money but also
the allocation or granting of preference rights to natural
resources. He said that was particularly the issue in the
F.I.S.H. Initiative case, Pullen v. Ulmer, in which one judge
brought up the issue that perhaps it was entirely beyond the
power of the people to adopt an initiative relating to management
of fish and game, because a provision of Article VIII says the
legislature shall provide for the conservation, development and
utilization of natural resources of the state.
MR. UTERMOHLE told members he believes that view was a major
issue in the most recent case heard by the court, Brooks v.
Wright, which came down ten days ago. In that case, one issue
was whether the constitution bars use of the initiative process
for the management of fish and game; the court said that no, the
initiative is available to the people, and they may use that for
purposes of management of fish and game. However, the court
didn't touch the issue of whether or not the particular wolf
snaring initiative constituted an appropriation and therefore
might be invalid on those grounds.
Number 226
REPRESENTATIVE BARNES asked whether Mr. Utermohle agrees that
because the constitution bars anyone other than the legislature
from managing fish and wildlife, any court decision that says the
initiative process has the right to manage fish and game should
be appealed to a higher court.
MR. UTERMOHLE said that was indeed the case, and it was decided
as such by the supreme court. There is not much opportunity for
further review of a state constitutional issue by a higher court,
although there is an opportunity, a brief period after the
decision comes down, for review or reconsideration of the
opinion. He restated that specifically in the Brooks decision,
the court decided that the people could, by initiative, address
management of fish and game.
REPRESENTATIVE BARNES asked whether, in Mr. Utermohle's opinion,
that decision flies in the face of the constitution.
Number 246
MR. UTERMOHLE replied that he doesn't see the direct opposition
of the two provisions in the constitution. Although he could
certainly see where the court could have come down differently,
he saw nothing in the constitution that dictated a particular
result.
Number 257
REPRESENTATIVE JOULE asked whether the term "initiative" only
refers to the petition process, rather than to action by the
legislature.
MR. UTERMOHLE clarified that the term "initiative" refers to a
process initiated by the people through procedures established in
the constitution and by statute.
Number 281
REPRESENTATIVE BUNDE told members he doesn't view this as having
any impact on the subsistence question that comes before the
legislature.
CO-CHAIR OGAN said that would be true unless there was an
initiative from the people about a statute change regarding
subsistence.
REPRESENTATIVE BUNDE concurred.
Number 292
CO-CHAIR OGAN asked what initiative process models other states
have used regarding fish and wildlife. He mentioned the idea of
requiring the same amount of signatures and same kind of vote,
but for fish and wildlife issues also requiring that those
signatures be obtained in all the voting precincts of the state,
for example. He asked Mr. Utermohle what Alaska's requirement
is.
MR. UTERMOHLE said he didn't have those provisions with him.
REPRESENTATIVE JOULE noted that it is in the constitution,
Article XI, Section 3.
Number 315
REPRESENTATIVE BUNDE said one state has required a percentage of
every precinct. He believes that Colorado tried to make entry
into the process more difficult by requiring people gathering
signatures to provide notification that they were paid to do so,
and by requiring them to wear various identification; that was
struck down by the U.S. Supreme Court, to his understanding.
Utah had passed a resolution similar to HJR 3 that was limited
strictly to fish and game. Representative Bunde suggested that
will probably be challenged in the courts, a four- or five-year
process, and he said he would be surprised if it didn't
eventually go to the U.S. Supreme Court. He said he would rather
proceed now, instead of waiting to see what happens in Utah. He
also pointed out that HJR 3 considers all natural resources,
which he believes is more appropriate for a resource-dependent
state.
Number 334
MR. UTERMOHLE, returning to Co-Chair Ogan's question about
signature requirements, paraphrased from Article XI [Initiative,
Referendum, and Recall], Section 3 [Petition], which says in
part: "If signed by qualified voters, equal in number to ten per
cent of those who voted in the preceding general election and
resident in at least two-thirds of the election districts of the
State, it may be filed with the lieutenant governor."
Number 352
REPRESENTATIVE BUNDE, suggesting something that appears too
limiting to the public process wouldn't be supported by the
public, reminded listeners that HJR 3 is a proposal for a
constitutional amendment, which must achieve a majority vote.
CO-CHAIR OGAN asked if there were further questions, then
announced his intention this session of hearing from the Alaska
public before taking testimony from department representatives.
Number 399
ROD ARNO, President, Alaska Outdoor Council (AOC), testified via
teleconference from the Mat-Su Legislative Information Office
(LIO), noting that the AOC has more than 12,000 members
statewide. He agreed that HJR 3 is timely and that the
legislature does not have exclusive lawmaking powers over
wildlife under Article VIII of the constitution. Mr. Arno said a
draft of the statewide comprehensive outdoor recreation plan,
compiled by the Department of Natural Resources (DNR) this last
year, shows that the number one outdoor activity in Alaska is
fishing, while second is walking for fitness, and third is
hunting. Mr. Arno told members this issue of fish and wildlife
use and management is extremely important to Alaska residents; he
emphasized that the AOC, other special interest groups, and the
public all want to be involved in decisions of management and
use. He said current state law provides a system entailing
boards and an advisory system; the AOC has supported this from
the beginning and continues to support it as a legitimate process
for making laws dealing with fish and wildlife use and
management. He mentioned that recently the AOC has participated
in the initiative process.
MR. ARNO stated, "We blindly went into the same-day airborne
initiative process, believing that the factual information would
suffice to win that, and were defeated at the polls. And we came
back in the snare initiative with a new understanding of how
'spin doctors' and money on media works, and were able to
successfully defeat the snare initiative at the ballot, my point
being that the Outdoor Council would just as soon participate in
one system - that of boards and advisories - as opposed to having
to participate in the two systems, and the initiative process
being quite expensive and never in the best interest of
conservation. So, we would encourage taking the effort to try to
achieve the goal, realizing that other special interests would be
under the same constraints, and possibly providing the
legislature with the sole rule making powers through an
initiative would be a better way to go."
Number 449
CO-CHAIR OGAN asked if Mr. Arno could cite examples of
initiatives passed by other states, mentioning "no trapping" in
Colorado, limiting hunting of cougars using dogs, and limits on
bear hunting.
MR. ARNO said that hit the high spots, adding, "And each year
we're seeing more and more hunter dollars going into opposing new
initiatives. And the outdoor community was quite successful, and
Alaska being one of those this last year, at defeating these
initiatives on a national basis. But, again, it took quite its
toll in resources. Definitely the trend is going that way.
Colorado you mentioned, not only on trapping but spring bear
hunting, and also, then, trapping in Arizona, and the mountain
lion restrictions still going on in California are examples."
Number 528
WARREN OLSON testified next via teleconference from Anchorage.
He said looking at HJR 3, he sees a big problem looming. He
stated, "I don't think two-thirds of any voting public can
dominate on trust property concepts, and it also includes
individual rights. Nor can a simple majority have bearing on
individual rights." He agreed with Mr. Arno that a lot of money,
time and energy would be wasted, which should instead go to
enhance resources for users all over Alaska. He said
Representative Barnes had brought up an excellent point in that
he believes the "Wright versus Alaska case" somewhat put a casual
spin on this whole affair. He suggested that elsewhere in the
country these types of cases have been taken to the U.S. Supreme
Court, but that it must be done by the legislators. He said the
citizenry cannot represent the legislators in their
responsibility of looking out for the welfare or the benefit of
the state.
MR. OLSON pointed out that in looking back at the constitutional
convention, fish and game areas were discussed more than any
other portion of the constitution. He stated, "Evidently,
according to the supreme court of Alaska, because the resource
committee ... did not make the same commitment as the judicial
committee during that constitutional makeup in 1956, therefore
the fish and game arena is subject to initiative action. I think
we have to be very specific, and in that regard -- and I think
you have other possibilities that have been submitted to you,
that the committee should consider, and especially in amending
Article XI, that states specifically the process of initiatives
in regards to fish and game and wildlife."
Number 546
CO-CHAIR OGAN asked Mr. Olson's opinion about one state's
possible requirement of obtaining signatures from all election
precincts.
MR. OLSON agreed that this is big business and people are making
money on it. He said in California, and perhaps across America,
it is a major industry. He concluded, "You're talking about
mechanics. I think we have to talk about substance. And the
fact is, the issue is not on the table. I don't think it can be
brought to the table if legislators take strong action on this to
remove it from the table, to make it very clear that they are the
trustees, that they are looking out for the benefit of the
beneficiaries. And there is a ... very unique but special
relationship here. And I think you folks have to guard that."
Number 576
CO-CHAIR OGAN responded that he understood what Mr. Olson was
saying, but that the ruling by the Alaska Supreme Court cannot be
appealed to the U.S. Supreme Court on that particular issue. He
asked for suggestions.
MR. OLSON told members that in Illinois v. Illinois Railroad, a
case that developed over approximately 70 years, Illinois
legislators finally took back control of the resource, saying
they were the trustees. That case went before the U.S. Supreme
Court, and according to Mr. Olson it has been looked at
historically as the major case in the nation regarding the Public
Trust Doctrine. He said this is "serious business." He
cautioned that there would be multiple initiatives at the ballot
regarding management of fish and wildlife in Alaska.
Number 597
PATRICK WRIGHT testified next via teleconference from Anchorage,
specifying that he is the "Wright" in Brooks v. Wright.
President of Scientific Management of Alaska's Resource Treasures
(SMART) and a 50-year resident of Alaska, he told members he has
had lifelong intimate involvement with fish and wildlife. Formed
in 1996 because of the initiative process being used to manage
fish and wildlife, SMART is dedicated to the wise use of Alaska's
fish and wildlife trust resources. Mr. Wright said Alaska's
constitution requires that the legislature shall provide for the
utilization and development of the fish and wildlife resources.
In 1959 the legislature established a very good public system,
which includes the Board of Game, the Board of Fisheries, and
local fish and game advisory committees around Alaska to bring in
local knowledge. He believes Alaska has one of the nation's best
management systems to provide for deliberation and discussion of
natural resources, but that the initiative process makes a sham
of this wonderful system.
MR. WRIGHT told members he was glad they were looking at the
opinion on Brooks v. Wright. He stated, "Some of the things in
that opinion are the things that the court omitted. They didn't
talk about this system that we have in place to assess and make
good fish and wildlife management procedures." He said in this
particular case, he would hate to see special outside interest
groups dictate, by popularity, how Alaskans manage their
resources. He explained, "The reason I say this is because these
groups, although [they] may be based in Alaska, they have their
heads that have only been here a short period of time, and their
moneys, as evident through the Alaska Public Offices Commission,
have been generated through outside sources in Connecticut,
Washington, California and New York. So, I'd recommend that you
take a look at providing a change to the initiative process
prohibiting the use of fish and wildlife management as an
initiative tool in ... Article XI, Section 7, of our
constitution."
TAPE 99-1, SIDE B
Number 001
CO-CHAIR OGAN referred to the supreme court opinion in the
packets and asked how State of Alaska v. Wright, Supreme Court
No. S-8685, relates to Brooks v. Wright.
MR. WRIGHT indicated the supreme court case was a combination of
two superior court cases, one regarding the same-day airborne
initiative and the other regarding the wolf snare initiative.
CO-CHAIR OGAN suggested that the Office of the Governor, then,
basically weighed in on the same-day airborne case.
MR. WRIGHT said yes, adding that they were the defendants in the
wolf snare ban initiative case, Wright v. State of Alaska, also.
Number 036
PAUL JOSLIN, Executive Director, Alaska Wildlife Alliance,
testified next via teleconference from Anchorage. He told
members his organization's interests are in the protection of
wildlife in the state, particularly from the perspective of the
nonconsumptive interests. In 1996 a survey in Alaska found that
the majority of Alaskans are nonconsumptive users of wildlife;
that is, they are "watchable wildlife folk." He emphasized that
these people are not intolerant of hunting, but that their
primary interest is watchable wildlife, which represents by far
the larger share of the economy. Mr. Joslin stated that in the
past three years, there had been a 40 percent increase in
tourism; the Governor had announced towards the end of last year
that it amounted to a billion dollars into the economy.
MR. JOSLIN said as part of the elaborate system of political
checks and balances built into Alaska's constitution, the ballot
initiative and referendum process serves as an important
safeguard to the public interest, acting as a check on the power
of the legislature and allowing the public to take affirmative
actions that the legislature might not have taken on its own.
Referring members to Articles XI and XII of the constitution, he
said the initiative referendum process is a central part of the
political dialogue between the citizens of Alaska and their
elected representatives. He told members, "It's interesting to
note that at the time of the framing of the constitution, there
came up the issue of fish traps. And that was made part of the
initiative process by the framers of the constitution."
MR. JOSLIN read from page 12 of the abbreviated faxed version of
the Brooks v. Wright supreme court opinion, provided that day:
"Additionally, safeguards exist in the process, allowing the
legislature to repeal initiated legislation after two years and
to amend such legislation at any time. Concerned parties can
also bring a post-election substantive challenge to what they may
believe is an ill-advised law." He said Alaska is much ahead of
most other states when it comes to the initiative process, with
many checks and balances. The first of two past wildlife
initiatives, which prohibited same-day airborne shooting of
wolves and predators, was overwhelmingly adopted from the public
perspective, whereas the snaring initiative was not. He
indicated the need to put some trust in the public, saying that
requiring an overwhelming majority of the public for adoption
would be very unfair.
Number 099
REPRESENTATIVE BARNES directed Mr. Joslin to Article XI, Section
7, of the constitution, which says, "The initiative shall not be
used to dedicate revenues, make or repeal appropriations, create
courts, define the jurisdiction of courts or prescribe their
rules, or enact local or special legislation. The referendum
shall not be applied to dedications of revenue, to
appropriations, to local or special legislation, or to laws
necessary for the immediate preservation of the public peace,
health, or safety."
REPRESENTATIVE BARNES noted that the restrictions on the
initiative referendum process were placed there by the founding
fathers. She suggested that saying a billion dollars a year is
being spent on wildlife viewing is misreading the tourism
statistics, as few tourists go into the wilds to see the
wildlife. She offered her belief that the supreme court opinion
in Brooks v. Wright is a bad one that "flies in the face of
pieces of court rulings that we have had in the past." She
stated, "I believe further that we cannot have this section of
our constitution without the restrictions being looked at by our
supreme court, and it certainly looks like that that's what they
did when they passed ... this particular finding of the supreme
court affirming a lower court decision. So, with that, I would
just like to say to you, while you say that you can change a
referendum in two years, you can amend it at any time, it cannot
be substantially amended; and a referendum that relates to fish
and wildlife could wreak havoc on that resource within a two-year
time frame."
Number 136
CO-CHAIR OGAN suggested that if we allow managers to manage
wildlife, rather than allowing wildlife to be managed by public
initiative, there will actually be more wildlife for people to
see. If there is a healthy population, there will be enough to
hunt; as the hunters are only in the field for 30 days or so per
year, depending on the species, for the rest of the year they are
running around for the tourists to see. He asked whether Mr.
Joslin believes some wildlife is more watchable than others.
MR. JOSLIN said yes, then told members about the Toklat wolves, a
family of wolves in Denali National Park and Preserve. The first
group of wolves in the world ever investigated, it has been
studied for more than 60 years. More people have seen that group
and more photographs have been taken of that group of wolves than
any other in the world; it is of enormous economic interest from
that perspective. However, the wolves sometimes move onto state
land, and the group has crashed from a dozen animals down to two
adults with four pups. He stated, "We don't know if that'll
survive now. This is a group that is very, very habituated to
people. And the illustration I'm trying to make here is that you
have an enormous resource here, from an nonconsumptive approach.
And when the people speak out on some of these things, it may be
to get that sense across. We have a few trappers, for example,
with the Toklat wolves, who can determine their fate, even though
there are 350,000 people that go to Denali National Park
annually."
MR. JOSLIN emphasized the need for balance between nonconsumptive
use and hunting. He suggested it was a reflection of the people
when they said, "We don't want you out there shooting wolves
airborne-wise, or other predators." He further suggested that
legislators would agree the public had made a wise decision. He
asked that legislators recognize the growing nonconsumptive
interest within Alaska, quite apart from the tourism. He
clarified that he wasn't saying it is a billion dollars from all
of the tourists for watchable wildlife, stating, "What I said is
the majority of those who come and spend those moneys here come
with a watchable wildlife perspective. They come to enjoy your
parks and preserves and so on."
Number 190
CO-CHAIR OGAN talked about how misleading the ads from the Alaska
Wildlife Alliance had been, because of the impression that wolves
would be shot from the air, which was already illegal.
MR. JOSLIN emphasized the need to deal with the present, saying
he wasn't here several years ago when that went through. He said
he could speak for the snaring initiative, however, and the
Alaska Wildlife Alliance in no way provided misinformation in ads
pertaining to that. He said they recognize it is a gray area,
rather different from same-day airborne hunting.
CO-CHAIR OGAN suggested that HJR 3 is trying to get at the fact
that these issues aren't always accurately portrayed by the
different sides.
Number 229
REPRESENTATIVE JOULE asked how many attempts had been made
through the Board of Game to deal with the issue before a
petition was driven to try to deal with it.
MR. JOSLIN replied that the Alaska Wildlife Alliance, as well as
other organizations, had brought several initiatives before the
Board of Game. He explained, "Even the enforcement division
said, with reference to the trappers, 'Couldn't we at least have
accountability? Couldn't we at least have a tag on all of the
snares and traps that are put out there, with a number on them?'
We'd license everything else just to have accountability in
society, but we don't do it with snares and traps, so that an
individual, if they want, can put out thousands of snares, if
they so wish to, that it lends itself to a lot of indiscretion."
MR. JOSLIN told members that when the government had used snares
for catching wolves, more than 40 percent of the animals taken
were caribou, moose and other species; that was using the best
wolf trappers in existence for homing in on wolves. The Alaska
Department of Fish and Game (ADF&G) had put forward a proposal so
that if a trapper caught an untargeted species, it was illegal to
use that animal as bait; however, that was thrown out. Mr.
Joslin said there was a lot of effort to bring about change in
the way this is operated. He characterized it as a disgrace and
suggested members should see for themselves. He suggested that
if it is not through a ballot initiative, some law should be
brought into existence that makes this industry accountable like
any other industry.
Number 269
REPRESENTATIVE JOULE said that having served on a local fish and
game advisory committee for a dozen or so years, they were in a
situation in northern Alaska where people wanted to use a .22
rifle to hunt caribou crossing the Kobuk River; over a period of
10 to 15 years the Board of Game rejected that. Representative
Joule told fellow members, "Not once did the thought of using a
statewide initiative cross our mind, because it was a pretty
local area that we were talking about. We did get that through.
The board did finally adopt it, and it is now a model case. And
sometimes I think the process, as frustrating as it may be --
persistence -- if your facts are straight, you've got your data
together, and you're focused in on the given area that you want
to make and effect change to, after a while will take root. But
to have the rest of the state exposed, to try to make decisions
for a particular corridor or an area, it's my belief can best be
handled at the board of game or the board of fish level."
Number 296
CO-CHAIR OGAN asked what percentage of the Alaska Wildlife
Alliance's funding is in-state, what percentage is from out-of-
state, and what organizations contribute to the alliance.
MR. JOSLIN replied that they receive a fair percentage from the
approximately 1,500 members, as well as from a variety of
foundations and grant-giving organizations; he believes the split
is about 50/50. He cited the "Turner Foundation" as a major
contributor. He then told of a meeting in Barrow over the snare
initiative where a representative had said the National Rifle
Association (NRA) opposed the fact that wildlife initiatives
tended to be passing around the country, and that they and others
planned to raise $800,000 to fight these; the first was the wolf
snaring initiative, upon which they had wanted to spend $350,000,
although the totals raised perhaps had not been that high.
MR. JOSLIN emphasized that interests on all sides, both inside
and outside the state, worked to bring information forward. He
said those involved in the snaring initiative had been appalled
to see the level of misinformation. Mr. Joslin concluded that it
comes down to the will of the people, who have the right to make
good decisions. He suggested legislators should be proud that
the public had overwhelmingly opposed same-day airborne hunting,
whereas the wolf snare ban had been rejected. He emphasized the
need to trust Alaskans, and he pointed out that most initiatives
fail nationwide.
Number 331
REPRESENTATIVE MORGAN stated that this wolf issue is very
sensitive in his own district, and it comes up in almost every
village that he represents. He asked when the legislature should
step in, as well as whether they should completely deplete one
species to save another species.
MR. JOSLIN emphasized the need for balance. He again brought up
the world-famous Toklat wolves, as well as the Denali caribou
herd, which had numbered 1,000 in 1976, at which time it became
protected both inside and outside of Denali National Park and
Preserve; he said that herd is up to 2,500 animals, and he said
that is a consumptive interest. On the nonconsumptive side, the
Toklat wolf group is down to two adults and four pups; he
questioned why that group cannot be protected.
Number 360
REPRESENTATIVE BARNES recalled that during the interim, there had
been debate over the Toklat wolves. She said she had read an
article that refuted those numbers and what happened to the
wolves; she asked that someone from the ADF&G find a copy of
that.
Number 378
BOB CHURCHILL testified briefly via teleconference from
Anchorage, speaking in favor of HJR 3. He said too often these
issues get caught up with emotions, and he believes the two-
thirds' majority requirement on natural resources initiatives
would be a good one, in the best interests of both consumptive
and nonconsumptive users. In reply to a question, Mr. Churchill
said he is a member of the Board of Game, had spent seven or
eight years with the Anchorage advisory committee, has hunted and
fished essentially his entire life, and is active in quite a few
organizations relating to natural resources.
CO-CHAIR OGAN asked if anyone else from the public wished to
testify, then called upon Jim Baldwin.
Number 410
JAMES BALDWIN, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Juneau), Department of Law, came
forward, advising members that his office had been counsel for
the state on the Wright case. He noted that the attorney
involved was not available that day, but she would be available
if HJR 3 was taken up another day. Mr. Baldwin explained that
the department had approached that case as an election law case,
with the role of defending the Lieutenant Governor's decision to
certify the initiative. He explained, "Once that decision is
made, then we're tasked with the responsibility of defending
that. The courts have said that we are to give the benefit of
the doubt to petitioners for initiatives, and that was done in
this case. And then, from then on, we defend it in the courts to
its natural conclusion, and that's what basically happened in
this case."
MR. BALDWIN stated his main purpose that day: ensuring that some
history of the initiative process was on record before any action
to amend a very important part of the constitutional framework.
He told members that when the constitution was debated by the
framers, the constitutional convention became nearly deadlocked
over whether to have the initiative. Some of the considerations
discussed at the current meeting were debated hotly back and
forth at the convention. On one hand was a desire to preserve
for the people the ability to pass legislation that may not
receive favorable consideration by the legislature; it was viewed
as part of the checks and balances. On the other hand was a
great concern about the process being misused by special
interests that were not necessarily representative of the public.
MR. BALDWIN told members the convention had taken the question up
in an extraordinary process known as a committee of the whole,
where it was debated and adjustments were made, to try to provide
some protections and balance. And yet, the initiative was
retained in the constitution by a vote of somewhere in the
neighborhood of 40 to 8. Some of the adjustments involved areas
discussed at the current meeting. Mr. Baldwin offered to go into
those in more detail; he said that basically the protection of
allowing the legislature to amend at any time after enactment of
an initiative was instituted, as well as the ability to repeal it
after two years. He said there had been some debate on that
latter provision. An earlier provision had said an amendment
could not be repealed for three years; that was scaled back to
two years, as part of the plan to make the provision more
acceptable to all of the delegates.
MR. BALDWIN told members there were other safeguards, also
discussed at the current meeting, including the threshold to
determine whether there is enough popular support for an
initiative. The original provision had been a requirement that
only 8 percent of the registered voters need to sign the
petition; that was raised to 15 percent, and the 10 percent level
was a compromise. Mr. Baldwin re-emphasized that these issues
had been debated and then ultimately compromised about. He said
it is important to keep the entire article in mind when
considering amendments, even though the committee is only
addressing one part.
Number 471
MR. BALDWIN advised members that one legal point, in counterpoint
to a statement by Representative Barnes, regards case law. The
one case in Alaska, which he believes may be Warren v. Boucher,
held that the power to amend an initiative is very broad, not
limited, so that the legislature's power to come in and
ameliorate a perhaps objectionable initiative provision is very
broad; that has been upheld by the supreme court.
REPRESENTATIVE BARNES recalled the campaign finance reform
debate, which involved writing a law to overcome an initiative.
She said it was stated several times then that the legislature
had to be very cautious about amending an initiative during the
two-year period, although it can be repealed after the two-year
period. She disagreed that there is a very broad power to amend.
Number 493
MR. BALDWIN said there are two concepts in the constitution to
keep in mind. First, the legislature may take an initiative off
the ballot by enacting something substantially similar; in that
area, the department has urged caution; the legislature has been
very conservative in approaching the problem, generally to the
point of putting almost exactly the same bill in to make sure it
does meet the legal standard of being substantially similar. The
other part of the equation is what an amendment is, and how far
it can go. There is only one case in that area, in which there
was a change in the way penalties were calculated under an
initiative that was put forward; Mr. Baldwin said he believed it
may have been an earlier campaign finance reform initiative. He
told members in that case the court found that the legislature
did have the power, and that its power would be liberally
construed in that context. He added, "I'm sure it's one that you
are properly advised to deal with caution, but I think that
there's some leeway granted there by the courts."
Number 506
CO-CHAIR OGAN requested confirmation that once the initiative has
gathered enough signatures, the language cannot be amended by the
legislature.
MR. BALDWIN said it has to do with the point in time. When
discussing the power of the legislature to amend an initiative,
that is after enactment; it would have been voted on, receiving a
51 percent affirmative vote, and it would have been enacted into
law. The other situation, the power to take an initiative off
the ballot, is when the application has been approved and
certified, and it is ready to go on the ballot. A legislative
session must convene and adjourn before that election can take
place, so that the legislature has the ability to preempt it; the
legislature is held to a standard, however, that the legislation
enacted to preempt the initiative must be substantially similar.
CO-CHAIR OGAN stated his understanding that there is a different
standard for amending the initiative when it has been certified
and the legislature is trying to take it off the ballot, as
opposed to when it has already been enacted.
MR. BALDWIN replied, "It could well be, yes. We've only had one
court case, Mr. Chairman. And as I said, the one court case
seemed to regard the legislature's power in that regard as being
very liberal, and as being a safeguard against ill-advised or
ill-conceived initiatives."
CO-CHAIR OGAN asked whether there had been two court cases, with
one about amending an initiative to take it off the ballot, and
another court case amending an initiative after passage. He
further asked whether there is a comparison there.
MR. BALDWIN replied that he believes there is a case involving
the issue of "substantially similar," and that he believes there
is only one case in that area, as well, although he could be
wrong on that. He offered to advise the committee in writing
about the cases in this area, saying he couldn't recall the
number of cases.
CO-CHAIR OGAN said he would appreciate that.
Number 541
REPRESENTATIVE BARNES asked, "Is it not true that through the
amendment process that you could desecrate a law?"
MR. BALDWIN agreed, saying he believes there is a point that can
be reached where a court would say it is, in effect, a repeal.
REPRESENTATIVE BARNES said the point holds, then, that they can
only go so far in the amendment process.
MR. BALDWIN said he thinks that is right, then clarified that he
didn't quite accept Representative Barnes' statement that it
seems the power to amend is limited.
Number 562
WAYNE REGELIN, Director, Division of Wildlife Conservation,
Alaska Department of Fish and Game (ADF&G), came forward to
testify. He told members that many states are struggling with a
proliferation of ballot initiatives relating to hunting and
fishing, and the ADF&G is working on it a lot with the
International Association of Fish and Wildlife Agencies to figure
out how to deal with this. He said it is a problem because it
provides for the potential to base fish and wildlife management
decisions on what he called "fact-free emotion," rather than on
solid science and long-established management approaches. He
said it seems as if the deepest pockets and the best television
commercials win in many states.
MR. REGELIN provided some examples. About four years ago,
Massachusetts banned all trapping, even with live traps; soon the
beaver population exploded, and extensive flooding occurred in a
subdivision, wiping out several roads and shutting down the
United Parcel Service (UPS) terminal for several weeks. He said
the fish and game department there couldn't do anything about it.
And in California all hunting and trapping of cougars was
prohibited several years ago; now the population has increased
and they are becoming a safety problem. For example, last year a
person was killed, but the fish and game department there cannot
do anything about it. Mr. Regelin told members these are some
reasons that states are looking at approaches to limiting ballot
initiatives related to hunting and fishing.
TAPE 99-2, SIDE A
Number 001
[Begins mid-speech because of tape change]
MR. REGELIN indicated no lawsuit has been filed on the issue of
whether it is appropriate to require a higher percentage of votes
to approve a ballot initiative on one subject versus another
subject. He discussed other states. For example, so that Las
Vegas cannot dominate, Nevada requires that 10 percent of the
voters in every legislative district must sign ballot
initiatives. Other states are looking at increasing the
percentage of signatures required. Mr. Regelin said nobody has
an answer yet, then added, "But I think all of the states are
similar to Alaska, that they have a public process already in
place that they think is good, and I think the one we have in
Alaska is very good -- has a very good public process of setting
our fish and game regulations. It's probably the most open of
any of the states. We have just over 80 fish and game advisory
committees that go and make recommendations to the board of fish
or the board of game. Beyond that, any group or any individual
can make a proposal to either board, and it's published, and it
must be considered by the board of fish or the board of game.
And that person, or anybody else, can come and testify on any
proposal before the board of game. So, we think that's ... the
best way to set hunting and fishing regulations. And as a
professional, ... we don't want laws based on emotion rather than
science."
Number 051
MR. REGELIN concluded by saying many people consider the
initiative process to be part of the public process, and many
consider it a fundamental right. He stated, "The
Administration's position is that the ballot initiatives could
continue to be a part of the public process to regulate natural
resource management, and it's not appropriate to do the 66
percent requirement."
Number 061
REPRESENTATIVE BARNES asked Mr. Regelin to provide her with the
biological data on the Toklat wolves at some point. She then
asked about the fate of one particular female wolf that was
relocated.
MR. REGELIN offered to call a couple of biologists to fulfill the
first request. He then told about the female wolf [Number 94]
that was relocated to the Kenai Peninsula and then moved back up
in a short period of time. She was wearing a radio collar, and
she had found a good home in Unit 13 but was caught by a local
trapper about two weeks ago.
Number 096
REPRESENTATIVE JOULE asked Mr. Regelin about his statement that
the Administration doesn't support the two-thirds' vote. He
asked whether there is an alternative solution that the
Administration would support regarding initiatives relating to
natural resources.
MR. REGELIN said he didn't know, although he believes there is
willingness to look at other approaches. He indicated that
nothing proposed has been decided upon.
Number 120
CO-CHAIR OGAN told Mr. Regelin one problem he has with the ballot
initiative process is that the legislature cannot change the
language. Therefore, it may be fairly easy to sell an idea
because of a misrepresentation, and it may result in a poor law
being put into the statutes. He discussed the same-day airborne
initiative as an example. He asked whether Mr. Regelin agrees
that sometimes things are misrepresented, resulting in poor
policy being passed.
MR. REGELIN responded that it is usually not so much a problem of
the language but of how it is perceived by the public. He
discussed erroneous television advertising, saying the same-day
airborne issue was very confusing to the public, who he said
believed they were voting against shooting wolves out of
airplanes, which had been illegal since 1976.
CO-CHAIR OGAN told members he intended to hold HJR 3 over for
further discussion. He asked that the Department of Law provide
minutes of the constitutional convention relating to the
initiative process.
Number 194
REPRESENTATIVE JOULE asked if the committee could have someone
address the issue of the petition process in the constitution,
including discussion about the possibility of requiring the
constitutionally required percentage of signatures to be obtained
in all districts in the state. He said he isn't sure he supports
the two-thirds' vote if there is another way to get there that
shows involvement from all areas of the state. "And at that
point, I'm not sure that I would just limit it to natural
resources in terms of ballot initiatives," he added. He
suggested this would give a fair representation from around the
state, that if something is important enough, there will be
outreach and support for that concept statewide.
CO-CHAIR OGAN agreed with the need to have those discussions,
suggesting it might build some bridges to the rural communities.
He noted that one other state had required a certain percentage
of voters in all the precincts, suggesting that way, the high
population centers wouldn't drive an issue.
Number 238
REPRESENTATIVE BARNES said the constitution is clear that "only
the legislature has the right to appropriate the people's
resources, and only the legislature has the right to manage the
resources of the people of the state." She said she believes
this court decision goes to the very heart of the management of
Alaska's wildlife resources, and that she doesn't believe it is a
good decision. She suggested that decision might cause grave
harm to the state's resources in the future.
Number 255
REPRESENTATIVE BUNDE mentioned the term "nonconsumptive user of
our resources." He pointed out that the greatest impact on our
wildlife resources has been loss of habitat. "If you exist on
this earth, you have an impact and are, in fact, a consumptive
user of resources," he added. "And to put on a holier-than-thou
attitude that because you don't directly kill an animal you're a
nonconsumptive user drives me a little bit crazy."
REPRESENTATIVE BARNES concurred.
REPRESENTATIVE BUNDE cautioned that if there must be a certain
percentage from every precinct, it would preclude rural residents
from coming to Anchorage to obtain signatures, for example; there
might be negative as well as positive impacts. As far as
eliminating the initiative process at all, he reminded members
that people in the sport fishing community might want access to
it, for example. He said they are talking about amending the
constitution, with long-range impacts, and people who would
support the process of the Board of Game at this point might be
very frustrated with the legislature and need some access. He
added, "So I don't want to close the door completely."
REPRESENTATIVE BUNDE reminded members that this is a resource
allocation issue. Naming a number of issues, he concluded,
"Remember that if we don't stand up and ask for good, solid
scientific management of all these issues, when it comes to our
issue there might not be anybody left to stand up."
[HJR 3 was held over.]
ADJOURNMENT
Number 311
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 2:44 p.m.
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