Legislature(2003 - 2004)
05/04/2004 08:02 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
May 4, 2004
8:02 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 297(RES)
"An Act relating to bear predation management and the
donation and sale of bear hides and skulls."
- MOVED CSSB 297(RES) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 385(JUD) am
"An Act relating to homeland security, to civil defense, to
emergencies and to disasters, including disasters in the
event of attacks, outbreaks of disease, or threats of
attack or outbreak of disease; establishing the Alaska
division of homeland security and emergency management in
the Department of Military and Veterans' Affairs and
relating to the functions of that division and that
department; and providing for an effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 354(STA) am(efd fld)
"An Act relating to complaints filed with, and
investigations, hearings, and orders of, the State
Commission for Human Rights; and making conforming
amendments."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 297
SHORT TITLE: BEAR HUNTING/DISPOSAL OF HIDE/SKULL
SPONSOR(S): SENATOR(S) SEEKINS
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) RES, FIN
03/17/04 (S) RES AT 3:30 PM BUTROVICH 205
03/17/04 (S) Heard & Held
03/17/04 (S) MINUTE(RES)
04/02/04 (S) RES AT 3:30 PM BUTROVICH 205
04/02/04 (S) Heard & Held
04/02/04 (S) MINUTE(RES)
04/07/04 (S) RES AT 3:30 PM BUTROVICH 205
04/07/04 (S) -- Rescheduled to 4 pm 04/07/04 --
04/14/04 (S) RES AT 3:30 PM BUTROVICH 205
04/14/04 (S) Heard & Held
04/14/04 (S) MINUTE(RES)
04/16/04 (S) RES AT 3:30 PM BUTROVICH 205
04/16/04 (S) Moved CSSB 297(RES) Out of
Committee
04/16/04 (S) MINUTE(RES)
04/19/04 (S) RES RPT CS FORTHCOMING 5DP
04/19/04 (S) DP: OGAN, DYSON, WAGONER,
04/19/04 (S) STEVENS B, SEEKINS
04/20/04 (S) RES CS RECEIVED NEW TITLE
04/21/04 (S) FIN REFERRAL WAIVED REFERRED TO
RULES
04/29/04 (S) TRANSMITTED TO (H)
04/29/04 (S) VERSION: CSSB 297(RES)
05/01/04 (H) READ THE FIRST TIME - REFERRALS
05/01/04 (H) STA, RES
05/04/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 385
SHORT TITLE: SECURITY;DIV. HOMELAND SECURITY/EMER. MGT
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
04/05/04 (S) READ THE FIRST TIME - REFERRALS
04/05/04 (S) HES, FIN
04/05/04 (S) HES AT 1:30 PM BUTROVICH 205
04/05/04 (S) Heard & Held
04/05/04 (S) MINUTE(HES)
04/07/04 (S) HES AT 1:30 PM BUTROVICH 205
04/07/04 (S) Rescheduled to 5:30 pm 04/07/04
04/07/04 (S) HES AT 5:30 PM BUTROVICH 205
04/07/04 (S) Rescheduled from 1:30 04/07/04
04/08/04 (S) HES RPT CS 2DP 2NR SAME TITLE
04/08/04 (S) DP: DYSON, WILKEN; NR: GUESS,
DAVIS
04/16/04 (S) FIN REFERRAL WAIVED REFERRED TO
RULES
04/20/04 (S) JUD REFERRAL ADDED AFTER HES
04/20/04 (S) JUD WAIVED PUBLIC HEARING
NOTICE,RULE23
04/21/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/21/04 (S) Moved CSSB 385(JUD) Out of
Committee
04/21/04 (S) MINUTE(JUD)
04/22/04 (S) JUD RPT CS 1DP 2NR SAME TITLE
04/22/04 (S) DP: SEEKINS; NR: FRENCH, OGAN
04/22/04 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/22/04 (S) Waived from Committee
04/29/04 (S) TRANSMITTED TO (H)
04/29/04 (S) VERSION: CSSB 385(JUD) AM
04/30/04 (H) READ THE FIRST TIME - REFERRALS
04/30/04 (H) STA
05/04/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 354
SHORT TITLE: HUMAN RIGHTS COMMISSION PROCEDURES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/27/04 (S) READ THE FIRST TIME - REFERRALS
02/27/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
03/23/04 (S) Heard & Held
03/23/04 (S) MINUTE(STA)
04/01/04 (S) STA AT 3:30 PM BELTZ 211
04/01/04 (S) Moved CSSB 354(STA) Out of
Committee
04/01/04 (S) MINUTE(STA)
04/02/04 (S) STA RPT CS FORTHCOMING 1DP 2NR
04/02/04 (S) NR: STEVENS G, STEDMAN; DP:
COWDERY
04/05/04 (S) STA CS RECEIVED SAME TITLE
04/14/04 (S) JUD AT 5:30 PM BUTROVICH 205
04/14/04 (S) Scheduled But Not Heard
04/20/04 (S) JUD RPT CS(STA) 1DP 3NR
04/20/04 (S) DP: SEEKINS
04/20/04 (S) NR: THERRIAULT, OGAN, FRENCH
04/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/20/04 (S) Moved CSSB 354(STA) Out of
Committee
04/20/04 (S) MINUTE(JUD)
05/02/04 (S) TRANSMITTED TO (H)
05/02/04 (S) VERSION: CSSB 354(STA) AM(EFD FLD)
05/03/04 (H) READ THE FIRST TIME - REFERRALS
05/03/04 (H) STA, JUD
05/04/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
SENATOR RALPH SEEKINS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 297.
PAUL JOHNSON (ph)
(Address not provided)
POSITION STATEMENT: During discussion of SB 297, expressed
concerns with aspects of the bill and responded to
questions.
JOE KLUTSCH, President
Alaska Professional Hunter's Association, Inc. (APHA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 297, provided
comments.
KAREN HOLT (ph)
Talkeetna, Alaska
POSITION STATEMENT: During discussion of SB 297, provided
comments and responded to questions.
KARA BAKKEN CLEMENS (ph)
(Address not provided)
POSITION STATEMENT: During discussion of SB 297,
encouraged the committee not to pass it.
DAVE BACHRACH (ph)
(Address not provided)
POSITION STATEMENT: Expressed concerns during discussion
of SB 297.
CHRIS DAY, Co-owner
Emerald Air Service, Inc.
Homer, Alaska
POSITION STATEMENT: Expressed concerns during discussion
of SB 297.
KEN DAY, Co-owner
Emerald Air Service, Inc.
Homer, Alaska
POSITION STATEMENT: Expressed concerns during discussion
of SB 297 and responded to questions.
PAT CARTER
Alaska Professional Hunter's Association, Inc. (APHA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 297, expressed
concerns and responded to questions.
MATT ROBUS, Director
Division of Wildlife Conservation
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 297, provided
comments and responded to questions.
SCOTT J. NORDSTRAND, Deputy Attorney General
Civil Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 297, responded
to questions.
JOHN CRAMER, Director
Administrative Services Division
Department of Military & Veterans' Affairs (DMVA)
Juneau, Alaska
POSITION STATEMENT: Presented SB 385 on behalf of the
Senate Health, Education and Social Services Standing
Committee, sponsor.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as chair of the Senate Health,
Education and Social Services Standing Committee ("SHES"),
sponsor of SB 385.
JAMES N. BUTLER III, Attorney at Law
Baldwin & Butler, LLC
Kenai, Alaska
POSITION STATEMENT: During discussion of SB 385, expressed
concerns.
LISA M. FITZPATRICK, Esq., Chair
Human Rights Commission
Office of the Governor
Anchorage, Alaska
SENATOR GRETCHEN GUESS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 385, spoke as
a member of the Senate Rules Standing Committee ("SRLS"),
sponsor by request of the governor.
ACTION NARRATIVE
TAPE 04-77, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs
Standing Committee meeting to order at 8:02 a.m.
Representatives Holm, Seaton, Coghill, Lynn, and Weyhrauch
were present at the call to order. Representatives
Berkowitz and Gruenberg arrived as the meeting was in
progress.
SB 297-BEAR HUNTING/DISPOSAL OF HIDE/SKULL
Number 0042
CHAIR WEYHRAUCH announced that the first order of business
would be CS FOR SENATE BILL NO. 297(RES), "An Act relating
to bear predation management and the donation and sale of
bear hides and skulls."
Number 0053
SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor,
presented SB 297. He reported that there is no shortage of
black or grizzly bears throughout Alaska. Furthermore,
they are not threatened or endangered and, in some game
management units, the bear populations are "many multiples
of the established population objectives." The Alaska
Department of Fish & Game (ADF&G) estimates statewide black
bear populations as high as 200,000 and grizzly and brown
bear populations as high as approximately 35,000. In
certain game management units, the estimates show that 70-
90 percent of all moose calves are dead before the age of
two months, due in large part to bear predation. As a
result, Senator Seekins said, "The fall recruitment was
virtually nothing, and the reproductive base populations
are crashing." He noted that the 2003 McGrath bear
relocation experiment "pretty clearly" demonstrated that a
reduction in bear population has a direct positive effect
on increasing [moose] calf survivability.
SENATOR SEEKINS explained that SB 297 would allow
relaxation of the standards regarding who can hunt in areas
where there is an overpopulation of bears, thus making it
possible to help reduce the number of bears down to the
population objective that's been set by the Board of Game.
The following findings would have to be established first
by the Board of Game: the consumptive use of the big game
population is a preferred use; depletion of that big game
population has occurred and may result in a significant
reduction in allowable human harvest of the population; and
enhancement of abundance of a big game prey population is
feasibly achievable, utilizing recognized and prudent
active management techniques. Once those findings are in
place and an intensive management use area is established,
then the provisions of SB 297 would come into play. He
continued as follows:
Those provisions, basically, are: We would allow
a resident ... 21 years of age - who's hunted big
game for two years, who's harvested big game in
one year, and who has completed a safety course
that [the ADF&G] is going to put together - to
accompany a maximum of two non-resident or non-
resident alien hunters into the field to hunt for
bear in that area. ... You cannot get ...
remuneration for that. So, ... under the second
degree of kindred rule, a ten-year-old could take
their ... step-grandfather hunting grizzly bear.
This now would allow me to take my daughter's
father-in-law with me to go hunting, as long as I
meet that criteria. That criteria is more
stringent than the requirement that we have for
an assistant guide. So, it's not just like
anybody gets to go out there and do it ....
SENATOR SEEKINS noted that the bill would also allow a
military person coming to Alaska to be considered a
resident, in terms of being able to hunt "in that area."
If that person meets the aforementioned criteria, he/she
would then be able to take a friend along who might not
otherwise be able to hunt. He said, "So, it gives them a
12-month edge to be able to get into the field, to be able
to hunt." The bill would also require the ADF&G to set up
a hunter safety course that's available throughout the
state. He also indicated that the Board of Game would have
the ability to choose which methods and means would be most
effective. Once the population objective set by the Board
of Game is met, he remarked, "this whole thing goes away."
Senator Seekins stated that something needs to be done
before the prey populations crash. He emphasized that
there would be a lot of control involved, and areas such as
Kodiak will not be one of the areas that will be considered
to be active management areas "for this purpose."
Number 0540
CHAIR WEYHRAUCH asked why the distinction between
nonresident and nonresident alien is important to the bill.
SENATOR SEEKINS explained that current statute requires
that a nonresident or nonresident alien must be accompanied
by a big game guide in the field. He stated: "So, by
allowing this exception to this statute - with these
carefully prescribed qualifications and in these particular
areas - that would need to be corrected ... or allowed in
statute. That's why it's there."
Number 0583
REPRESENTATIVE HOLM asked why the fee was lowered from $500
to $250.
SENATOR SEEKINS responded that it was made a ceiling fee
rather than a bear permit. He clarified: "We wanted to
make this distinct from hunting; this is bear predation
management [and] requires a bear predation management
permit that they have to apply for." He explained that the
difference is that the person would only pay the money if
he/she gets the bear, rather than paying up front and
possibly not even seeing a bear. He said it was suggested
by Senator Ogan that "we probably will get about the same
amount of money, or maybe more, because we're going to try
to reduce that bear population."
Number 0663
REPRESENTATIVE SEATON asked what would prevent a person
from hunting as the bill would allow, rather than paying up
front to hunt.
SENATOR SEEKINS said the purpose of the bill is to get more
people out there hunting to reduce the bear population;
however, he emphasized that if someone wants to get a
trophy bear, he/she won't find them "in these areas." In
response to questions from Chair Weyhrauch, he stated that
one of the findings that would be required is that bears
are a part of the problem [in predation] and a reduction in
bears would help solve the problem. He said there are
several game management areas that have this problem. For
example, he cited Game Management Unit (GMU) 13, where the
bear population is between 1,500-1,600 and the population
objective is around 300. In response to a question from
Representative Lynn, he revealed that GMU 13 is an area
bounded by the Parks Highway, the Denali Highway, the
Richardson Highway, and the [Glen Highway]. In that area,
moose populations were at one time 27,000, but are
currently 7,000-8,000 because of the huge predation problem
that exists.
Number 0854
REPRESENTATIVE SEATON asked whether [bears] would
automatically qualify under the [wolf] predation [program].
SENATOR SEEKINS said he doesn't know, but offered his
belief that bears are part of the problem in GMU 19, 20,
and 13.
Number 0953
REPRESENTATIVE COGHILL asked how the annual bear count
would be done.
SENATOR SEEKINS replied that although bears are hard to
count, there is a rough estimate of populations in "these
areas," as well as a population objective. He surmised
that Mr. Robus, from the ADF&G, would have the ability to
talk about the infield process more than he can.
REPRESENTATIVE COGHILL asked what accountability measure
there would be if a person is given a permit and never
shows up again.
SENATOR SEEKINS directed attention to page 4, lines 1-4,
which read in part:
A nonresident or nonresident alien shall pay a
fee of $250 at the time the bear is sealed by the
department. The person shall accurately complete
and return to the department in a timely manner
reports that may be required by regulations of
the Board of Game.
SENATOR SEEKINS said that the ADF&G and the Board of Game
will have some timeline requirements regarding how the
[report] is returned.
Number 1085
REPRESENTATIVE SEATON directed attention to a letter from
[the Alaska Professional Hunter's Association, included in
the committee packet], stating that differential treatment
of nonresidents in different areas within the state is
likely to expose Alaska's bag requirement to a federal
constitutional equal protection challenge. He asked
Senator Seekins if he had looked at that and sought a legal
opinion.
SENATOR SEEKINS said he has not obtained a legal opinion
from Legislative Legal and Research Services, but he has
worked with attorneys from "several of the outdoor groups."
He reiterated the aforementioned criteria. He said:
What we've done is we've tried to make sure that
the requirement here is at least in the area of
what we would require from a second-class guide.
If I personally were going to challenge that
constitutionally, I would challenge it based on
the "second degree of kindred" rule, because a
ten-year-old who's never been in the field can
guide their step-grandfather to hunt grizzly
bear, under that provision. There are sideboards
on this that -- lawyers are 50 percent right/50
percent wrong, and they'll always find a reason
not to do something ....
But, what ... we [are] looking at is: Okay, how
do we effectively reduce this population? I
think we've given them some information here. If
you were going to challenge that requirement, it
would not be based on these more stringent
requirements for someone to be able to accompany,
but it would be on a second degree of kindred
rule.
Number 1211
PAUL JOHNSON (ph) stated that he totally understands what
Senator Seekins is trying to accomplish; however, he said
he has a real concern regarding the guide-required portions
of the bill. He restated Senator Seekins' remark about
lawyers being right 50 percent of the time and wrong the
other 50 percent of the time. He indicated the bill would
affect more than just bear; sheep and goats would also be
jeopardized, as well as the state's resources. He
mentioned Montana, and said that attorneys that he has
talked with have warned, "Don't play games with this." He
mentioned compounding subsistence problems and resident
hunt problems, and said [the bill] "puts the industry in
jeopardy." He concluded, "It's just a huge gamble; it
isn't worth it."
REPRESENTATIVE GRUENBERG asked Mr. Johnson if he represents
or is a member of a particular group.
MR. JOHNSON replied that he belongs to the Alaska
Professional Hunters Association, Inc. (APHA). He revealed
his background as having worked on game issues for over 25
years. In response to a follow-up question from
Representative Gruenberg, he confirmed that the legal
opinion to which he referred was the same as was earlier
noted in the APHA's letter. He emphasized that this is not
a new issue. He acknowledged that things aren't perfect,
but stressed that they have worked well to this point.
Number 1430
JOE KLUTSCH, President, Alaska Professional Hunters
Association, Inc. (APHA), told the committee that the APHA
represents over 600 professional members statewide and
facilitates a major component of Alaska's visitor industry.
He revealed that he has been guiding big game hunts for
over 30 years. Where he lives out on the Alaska peninsula,
he noted, brown bears have always been a significant factor
in moose calf mortality, and offered his view that
predators are generally opportunists; there's no doubt that
a relatively small percentage of the bear population are
the culprits in calf mortality. He said that to a great
extent, it's learned behavior, adding his belief that the
indiscriminate or wholesale killing of brown bears and
grizzly bears is not likely to result in a notable increase
in calf survival. He opined that these are issues best
left to the Board of Game.
Number 1505
MR. KLUTSCH referred to the previously mentioned letter
which emphasizes the importance of maintaining the guide
[requirement] without exception. He said: "Our counsel is
a leading national expert on this subject and has cited
significant case law that underscored the importance of not
making exceptions to the provisions; to do so will ...
undermine the defensibility of the provision in its
entirety." He noted that the Alaska guide requirement is
predicated on considerations of hunter welfare and safety,
resource management, enforcement, and accountability. It
benefits people who come from outside Alaska to hunt, as
well as resident hunters.
MR. KLUTSCH highlighted an excerpt from his letter, which
read [original punctuation provided]:
Any action that says, in essence, that these
considerations are legitimate and compelling with
respect to one area (where the guide requirement
is in effect) but are not compelling (and are
waived) in another, weakens the rational basis of
the requirement. As a result, differential
treatment of non-residents in different areas
within the state is likely to expose Alaska's
guide requirement to federal constitutional equal
protection challenge.
MR. KLUTSCH expressed understanding of Senator Seekins's
goal in offering the bill, because there has been an
absence of meaningful predator management in Alaska for
over a decade and "we've seen the consequences in a number
of the game management units." He stated his belief that
if the Board of Game is left to its own devices to sort the
issue out through traditional seasons, bag limits, and
methods and means, eventually widespread public support
will be garnered. He noted that that public support does
not exist currently, which he said is a concern. He stated
that the wholesale approach to harvesting bears doesn't
seem to be wise at this time, because the risks outweigh
the advantages.
Number 1643
MR. KLUTSCH, in regard to Senator Seekins' remarks about
the vulnerability of the "second degree of kindred," said
the Senator makes a valid point. He suggested that the
solution may be to revise the "second degree of kindred"
provision, rather than rifting the guide requirement in its
entirety. Mr. Klutsch concluded that this issue is
critical, and said he hopes the committee will consider his
comments.
Number 1663
CHAIR WEYHRAUCH asked about Section 2, noting that it
addresses the issue of bear hides and skulls.
Number 1677
SENATOR SEEKINS offered his belief that, currently, a
person cannot sell a grizzly bear hide in Alaska, but
he/she can take it to Washington, for example, and sell it
to someone who could then bring it back to Alaska. He also
offered his understanding that the hides and "trophies"
that are confiscated for being illegally taken are sold at
auction during the Fur Rendezvous in Anchorage. That
revenue supplements the "fish and game fund." He suggested
that [Section 2] provides a way for someone to donate a
hide or skull back to [the ADF&G] to be sold; after the net
proceeds are realized, the person could get up to 50
percent of that back, while the remainder would go either
to the ADF&G or to a tax-exempt organization involved in
conservation efforts.
SENATOR SEEKINS, in response to a question, offered his
belief that [Section 2] would allow the state to auction
the items on eBay.
CHAIR WEYHRAUCH asked how the language in the bill
regarding of nonresidents and nonresident aliens will
address the problem of bear predation on big game
populations.
SENATOR SEEKINS posited that that language will put more
hunters in the field. He indicated that the price of
hiring a big game guide to go after grizzly bear is $7,000-
$10,000, and clarified that the intent of the bill is not
to disrupt [the hiring of guides] in areas where the bear
populations are within the population objectives. He
reiterated the example of GMU 13, where there are up to
1,600 grizzly bears, but few guides actively pursuing those
bears. He said that in many cases, the bears in that area
are not the huge coastal brown bears that people are after,
and it is a difficult area to access. Furthermore, big
game guides cannot take nonresidents to hunt moose in that
area, because the moose population has crashed to the point
where only resident hunting is allowed. He noted that
currently, there is a year-round bear season, [with a limit
of] one bear a year, "no tag," in GMU 13, while in many
other areas of the state the limit is one bear every four
years. Relaxation of methods and means has not helped to
reduce the bear population, he concluded.
Number 1883
CHAIR WEYHRAUCH noted that Section 1, subsection (g), would
require the department to provide a hunter safety course,
but would not require the hunter to take that course.
SENATOR SEEKINS directed attention to page 3, line 18,
which states that the hunter must obtain a hunter safety
certificate "under (g) of this section." In response to a
follow-up question from Chair Weyhrauch, he confirmed that
the hunter would have to pay for the course, so it would be
"cost-neutral" [to the department].
Number 1920
REPRESENTATIVE GRUENBERG directed attention to page 4,
lines 9, 11, and 20. He suggested inserting the words
"obtained from a designated intensive game management unit"
after the words "legally taken bear hide or skull".
CHAIR WEYHRAUCH said he thinks that inserting such language
would defeat the purpose of the bill. He opined that
Section 2 of the bill addresses a broader policy issue;
it's not specifically an intensively managed game unit.
SENATOR SEEKINS concurred, adding, "There are a lot of
hides and skulls out there that maybe aren't even wanted
anymore, but ... this could help them serve a good
purpose."
Number 1990
KAREN HOLT (ph) said:
Let me begin by stating my wholehearted support
for predator management and the intent of Senator
Seekins. The concern I have, however, is the
part of the legislation that allows individuals
who are not licensed, registered guides to
accompany a nonresident or nonresident alien bear
hunter in the field. I've watched the evolution
of the guiding industry during the past 20 years
of my husband's career. As you probably know, an
individual seeking registered guide status must
apprentice in the field [and] take a written and
practical exam showing proficiency before they
can become licensed as a registered guide. And
this process takes many years.
After a guide is registered, they must maintain
licensure and, prior to commence going into the
field, comply with state laws requiring liability
insurance and land-use authorization. These
regulations are for the general public, they are
for safety, and, most important, they are for a
quality hunting experience. This bill is
important, but I feel very strongly it needs to
be amended for the safety [of] and concern for
the general public. And to support the guiding
industry, only licensed individuals should
accompany those nonresident and nonresident alien
bear hunters in the field. I feel this language,
as currently written, just opens the door to too
many individuals who have no interest in
complying with the industry regulations the state
has already decided [are] in the ... hunting
public's best interest.
MS. HOLT, in response to a question from Chair Weyhrauch,
clarified that she is in Talkeetna and her husband is
[working as a hunting guide] in Kodiak.
Number 2075
REPRESENTATIVE SEATON asked if the concern is that allowing
the "non-guides" to take people hunting will put the guides
within those areas out of business.
MS. HOLT answered, "Not necessarily; I think it could be a
perception problem when you allow an individual who takes
somebody out in the field." She clarified that she is not
concerned about the person who takes a relative out, but is
concerned about the person who wants to be a guide without
going through all of the regulation requirements,
apprenticing, and ensuring that the public's interest is
put first.
REPRESENTATIVE SEATON asked Ms. Holt if she thinks the
section of the bill that wouldn't allow a person to accept
money for services would control that situation.
MS. HOLT answered no. She offered her understanding that
the bill would allow the person to get reimbursed for
expenses, adding that there's no way to control that
[amount].
Number 2146
SENATOR SEEKINS referenced page 2, lines 27-31, which read
in part:
A resident who is not a registered guide or
master guide may not receive any remuneration in
excess of direct expenses incurred in
accompanying the nonresident or nonresident alien
to take a bear and may not accompany more than
two nonresidents, regardless of whether they are
aliens or not, during a calendar year to take a
bear under this subsection.
SENATOR SEEKINS said he wants to ensure that someone [who
is not a registered guide] would not go into the guiding
business.
CHAIR WEYHRAUCH asked if there would be any penalties for
violations.
SENATOR SEEKINS answered that he hopes that issue would be
addressed via regulation.
Number 2196
REPRESENTATIVE HOLM offered his understanding that the
intent of the bill is to induce people to help with
predator control. He echoed Senator Seekins' previous
remark that the guides are looking for the large animals,
which are not necessarily in the areas where the predator
control is needed.
SENATOR SEEKINS directed attention to page 2, lines 25-27,
which read in part:
A registered guide or a master guide is not
subject to any limitation on the number of
nonresident or nonresident alien permittees that
the guide may accompany for purposes of taking
bear under this section.
SENATOR SEEKINS said, "We've tried to also give some
inducement for guides to take these nonresident permit
holders into those same areas."
REPRESENTATIVE HOLM remarked, "But they don't seem to be
very supportive of that."
SENATOR SEEKINS said he's tried to be sensitive to that.
He continued:
I do believe that we've tried to be very careful
in raising the requirements for somebody to be
able to do that - not [for] those of a registered
guide, who [has] done all the things that the
previous ... lady with testimony said. And I
respect the fact that those master guides and
registered guides have to go through a tremendous
process. But we've taken the requirements for
someone who is a resident above those
requirements for a second-class guide who would
work for that guide. A second class guide only
has to be 19 years ... old, ... hunted big game
in Alaska for two years, and have a Red Cross
certificate. That's it. So we've tried to bring
it to a higher standard than that, for that
purpose.
Number 2301
KARA BAKKEN CLEMENS (ph) encouraged the committee not to
pass SB 297. She explained that the bill seems to be too
extreme a measure, which risks harming the bear population.
That population would be slow to recover from such a
measure and is an important natural resource to hunters and
to brown bear viewing and guiding services.
CHAIR WEYHRAUCH asked for confirmation that the bill
addresses the matter by individual game units.
SENATOR SEEKINS answered, "Even by subunit in the game
management unit, it can be done."
SENATOR SEEKINS, in response to a question from Chair
Weyhrauch, referred to AS 16.05.255(e), which he said is
the statute that "controls the intensity of management
trigger." He stated, "And those findings now - putting
those areas into ... management - are in writing, and are
based on biological information provided by the
department."
CHAIR WEYHRAUCH noted the term on page 1, line 9, "a
cause", and questioned whether it should read, "substantial
cause."
SENATOR SEEKINS said, "First of all, ... it has to be in an
area where human consumption is important."
CHAIR WEYHRAUCH concluded, "So, ... you're linking your
testimony in this bill back to these factors."
SENATOR SEEKINS concurred.
Number 2388
DAVE BACHRACH (ph) told the committee that he owns a
wildlife viewing (indisc.).
TAPE 04-77, SIDE B
Number 2389
MR. BACHRACH said he has heard concerns expressed regarding
hunter welfare and safety, and the potential legal risks
and battles that could arise over [SB 297]. He offered his
understanding that the bill does not exempt areas like
Kodiak and Katmai; it is a statewide bill. He stated his
belief that it should be up to the Board of Game to
determine how "these things are managed," that the
legislature shouldn't make those decisions. He noted that
bear populations are slow to recover, and that older bears
have been removed from the Alaska Peninsula, resulting in a
generational gap. He indicated that the bill is both
scientifically and economically unsound, and he asked that
the committee consider that.
Number 2321
CHRIS DAY, Co-owner, Emerald Air Service, Inc., told the
committee that her company is a bear viewing operation that
has, for the last 17 years, taken about 500 people a year
to see brown bears. She stated her concerns regarding the
bill. The first concern relates to safety. She emphasized
that it's important for people hunting large predators to
have an experienced [guide] with them. Second, she
characterized the bill as a poor one "biologically." She
referred to the previously stated "rough estimate" of the
bear population and said that's an understatement. She
admitted that she is not a biologist, but works with a lot
of biologists and can state that it's difficult to count
bears. She echoed Mr. Bachrach's testimony that bears are
slow to recover, and she indicated that the effects of the
bill may be to knock the population back too far.
MS. DAY recommended looking at the state, in general, and
where its dollars are made. She called tourism "an
incredible industry in Alaska." Bears and wolves are top
on the list of animals that people want to see when they
come to Alaska. People also want to come to Alaska to hunt
bears. She opined that the perception of the general
public towards bills like [SB 297] is that [Alaska] has
moved back into the Neanderthal Age. She stated: "The
general public - nationwide and worldwide - look for Alaska
to preserve the animals and the ecosystem up here; it's the
Last Frontier. And I think we need to hold ourselves to a
higher standard." She emphasized again her concerns
regarding the ramifications of [SB 297].
Number 2216
KEN DAY, Co-owner, Emerald Air Service, Inc., relayed that
he was out in the field for years before starting his
business, and that he used to see a healthy population of
bears on the Alaska Peninsula. Over the last 10-12 years,
that population began to decline rapidly. In areas where
there used to be 6-8 large male bears daily, just last year
there was one male bear spotted that weighed approximately
600 pounds. He indicated that the state harvest records on
the peninsula show that 12 years ago, the average age of a
bear taken out of the area was 16 years old. Before the
last fall hunt, that average age was 3.8 years old.
Biologists in the area are saying that the population is
being decimated. Mr. Day said the same evidence has been
presented to the Board of Game, but it has taken no action
and still allows any hunter that wants to go into this area
to hunt. He said he thinks [SB 297] would be just another
measure to wipe out the bear population, and would be of
benefit to hunters but not the state.
Number 2135
PAT CARTER, Alaska Professional Hunter's Association, Inc.
(APHA), stated that 98 percent of [Alaska's] guiding
industry is comprised of residents, which is one of the
highest resident percentages of any industry in the state.
He noted that the guiding industry is roughly a $120-
million-a-year industry. He continued as follows:
While we agree with the need to actively manage
all of our wildlife population, including
predators, and we commend Senator Seekins for his
efforts in that regard, we feel that this ...
legislation - by including nonresident and
nonresident aliens - is risking a lot.
... [The] APHA's legal council has extensive
experience and expertise in this area, and I
can't think of anybody that I would regard ...
higher ..., with regard to his opinion on this.
[Game Management] Unit 13, as Senator Seekins
mentioned, has a large population of bears.
We're not debating that; we're not debating the
need to put more hunters in the field. What
we're suggesting, though, is that it is ... very
risky proposing to [alter] "guide required"
[language] in order to do that.
If we need to encourage hunters in the field, I
don't think that it's sportsmen that are going to
actually reduce the population. Speaking with
the department yesterday, they mentioned that
they had somewhere between 1,200 and 1,500 bears
in [GMU] 13. Their desired population is
somewhere in the neighborhood of about 300. So,
roughly speaking, we're talking about removing
1,000 bears out of that area.
MR. CARTER estimated that the program proposed in SB 297
may result in only 30 bears being killed. He noted that
predation of moose calves by bears is a learned behavior
that all bears do not display. Therefore, if only 30 bears
are killed, possibly only 2-5 of those bears will be the
"problem bears." He questioned how many moose would be
saved by doing something that is risking the guide industry
of Alaska. He asked the committee to carefully consider
"the great risk that we're taking here [with] ... the
probability of having [a] minimal desired effect."
Number 1983
REPRESENTATIVE HOLM asked what bears normally eat if they
are not eating moose calves.
MR. CARTER said bears eat squirrels, smaller game,
ptarmigan, and berries. In response to a committee member,
he said one of the APHA members was attacked by a bear. He
emphasized that hunting for bears is a dangerous activity.
Often when hunting bears, the decision is to not shoot. He
offered an example of being in close proximity to alder
trees and shooting a bear that disappears into those trees.
He asked, "Who's going to go in there after them?" He
indicated that one of his guides was pressured into doing
so because he didn't want to wind up skinning a bear in the
dark but paid dearly for it.
MR. CARTER said [the APHA] would remove its opposition to
the bill if the language regarding the nonresidents and
nonresident aliens was removed, and other means of putting
more hunters in the field were considered. He suggested
that perhaps the take of the person donating a bear hide
could be increased.
Number 1877
REPRESENTATIVE GRUENBERG asked if there would be any legal
liability on the part of the department if it gave a permit
to a nonqualified person and, as a result, the person who
was guided got injured.
MR. CARTER said he is not qualified to answer the question,
but thinks it's a good one to ask. He shared that his
earliest memories are of hunting and fishing with his
father and grandfather, but he has never hunted bears. He
said he has been approached by bears, but has never had to
shoot one yet. He said he wouldn't feel qualified to take
someone out in the field and pretend to be a guide, because
bears are dangerous and, even though he is a resident, he
would want to go with an experienced [guide].
Number 1812
MATT ROBUS, Director, Division of Wildlife Conservation,
Alaska Department of Fish & Game (ADF&G), stated that CSSB
297(RES) has some important improvements over the original
bill. First is the change in approach from a way to use
hunting to achieve predator control results to a true
predation management program. The bill provides a boundary
between two ways of taking bears, with hunting for trophy
or food being the established way and depends on fair chase
as an integral part of the practice. He continued as
follows:
This bill would authorize a program whereby the
objective is not fair chase, but - in certain
situations identified by the Board of Game, with
information provided by the department - to
reduce bear populations where bears of one or the
other species are a predation problem for an
ungulate population.
And so, under the bill, non-ordinary methods of
taking bears would be restricted to these areas
where the Board of Game has developed a specific
program to take care of a specific situation.
And I think that that gets to some of the
questions that members have asked prior to now
about the scope of this. ...
MR. ROBUS indicated that the bill's proposed program for
bear predation management is similar to the department's
existing program for wolf predation management, and it
would allow the Board of Game to incorporate both wolves
and bears in predation management implementation plans,
which up until now has not really been possible.
MR. ROBUS noted a second change in CSSB 297(RES) is the
removal of methods and means language from the original
bill. He relayed that the Board of Game adopted a bear
management policy, which it had been working on for over a
year, at its March meeting. It also adopted some
associated regulations to allow the implementation of that
program. He stated, "The way to get to unusual methods and
means to stimulate additional bear harvest in areas where
it's necessary for management purposes is largely already
in place." The Board of Game, under those regulations, has
the ability to custom tune those methods and means to the
situation; therefore, the department considers it
appropriate to have those decisions made at the Board of
Game level and not have them incorporated into statute.
MR. ROBUS clarified that the term "hunter safety course"
does not refer to the standard hunter education course that
the department already delivers. He explained that it
would be some form of training that the department presents
to address the situation of people going to take bears
under one of the predation control permits. He said, "We
don't know the exact shape of that yet, but we do want to
make sure that people don't think it's just the standard
elementary hunter education course."
Number 1579
MR. ROBUS revealed that the department and the Board of
Game have, for a long time, agreed that the first step in
attempting to reduce bear numbers in a situation where that
needs to be done is to liberalize the hunting rules and
hope that that results in a higher level of bear take. He
explained that that's predicated on the notion that to take
more bears, it is usually necessary to put more hunters
into the field. He noted that if in GMU 13, for example, a
change is made from an 8-month bear season to a 12-month
bear season, it won't make a difference if people aren't
"attracted to taking bears." To that extent, he said, the
department sees the nonresident [and nonresident alien]
portion of the bill as an innovative approach to trying to
put more people into the field. He said the guides raise a
serious point, but since he is not an attorney, he is not
prepared or qualified to say "what the true nature of that
question is." He indicated that the focus of the
department has been on the methods and means and the
mechanism of the program itself.
Number 1508
REPRESENTATIVE GRUENBERG asked whether there would be any
legal liability on the part of the department if it gave a
permit to a nonqualified person and, as a result, the
person who was guided got injured.
MR. ROBUS responded that he is not qualified to answer that
question and recommended that it be asked of the Department
of Law (DOL).
Number 1478
MR. ROBUS, in response to a question, said that he knows
that in the current programs, the department is issuing
permits only to residents, but he doesn't know if it is
constrained to that.
REPRESENTATIVE SEATON asked what the department's
expectation is regarding the number of nonresident and
nonresident aliens that will take advantage of the program
but who would not otherwise have taken advantage of a
guiding opportunity.
MR. RUBUS said it would depend on how much or how little an
area the Board of Game decides to identify as a bear
predation management control area. He continued as
follows:
I think it's safe to say that we're generally not
talking about a trophy bear area; we're talking
about an area where the hunting regulations would
have already been liberalized as far as possible.
So, that means that residents would not need to
buy a $25 resident tag to hunt bears there, in
the case of brown bears. And of course, [for]
black bears, residents hunt without charge
everywhere. ... The fact that there might be
additional methods and means allowed under a
[Board of Game] program - for instance, you might
be able to use an aircraft to access the area to
begin your hunt, ... and if you do that on the
same day, you cannot do that anywhere now - ...
might attract more resident hunters.
For nonresident hunters - ... to the extent that
they're allowed to participate here - the
attraction in the present bill would be for some
limited parts of the nonresident community, like
first-year military residents; for instance, not
having to buy a brown bear nonresident tag. The
whole guide fee question comes in here also.
That could ... reduce somebody's costs pretty
dramatically. So, depending [on] how that part
of the bill ends up, it could attract an
additional increment of nonresident ... bear
takers, under these permits that would be issued,
as opposed to a standard hunt.
REPRESENTATIVE SEATON noted that there seem to be some
questions regarding putting some of the guiding laws at
risk. He said he wants to know whether the department
thinks that there is a substantial benefit to this one
provision, or whether the bill's other sections offer
substantial enough benefit without that provision.
MR. ROBUS said that's a difficult question and has to do
with judgment and estimating the situation. He stated, "I
think the lowered costs involved would be a significant
attractant, but I think the changes to methods and means
would be significant for all people participating ...." He
explained that since it would be a predator control
situation and fair chase is not the primary concern, people
would be given an advantage that they don't normally have
in getting to and taking bear.
Number 1250
REPRESENTATIVE HOLM said it has been suggested that the
balance won't change significantly, because the bears are
really not as large a contributor to the decimation of the
moose population. He asked Mr. Robus to address that
issue.
MR. ROBUS answered that with all things biological, every
situation is different and more complicated than first
believed. He indicated that [some considerations are]
whether habitat conditions will support a higher ungulate
population than what currently exists, and whether
information shows that predation is limiting an ungulate
population. He said that in some cases, bears are
extremely important in keeping an ungulate population
suppressed. He mentioned a McGrath study that has been
underway for the last decade, in which the department found
that while wolves have been and continue to be a
significant predator of moose calves, year round, bears are
the major predator in the first few weeks of a calf's life.
He noted that the department has relocated 100 bears out of
a 500 square mile area last spring, as way of reducing the
pressure on moose calves. He said that method was an
experiment and can't be used very often.
Number 1070
REPRESENTATIVE GRUENBERG directed attention to subsection
(e) on page 3, which would provide certain benefits only to
people in the military, and questioned whether that would
pose any constitutional equal protection problems.
MR. ROBUS said he didn't know.
Number 1021
REPRESENTATIVE LYNN noted that in subsection (e), "the
military service" and "the United States Coast Guard" is
listed separately. He offered his understanding that the
U.S. Coast Guard was [part of] the military services.
REPRESENTATIVE GRUENBERG said, "Except in time of war ...."
He mentioned the Department of Transportation [& Public
Facilities].
Number 0953
SCOTT J. NORDSTRAND, Deputy Attorney General, Civil
Division, Office of the Attorney General, Department of Law
(DOL), said he is not prepared to comment on equal
protection issues regarding SB 297.
REPRESENTATIVE GRUENBERG reviewed that his two issues are
the question of liability in subsection (d) and the
question of constitutionality in subsection (e). He said
he doesn't want the state getting into any legal problems.
MR. NORDSTRAND responded, "I entirely agree with that." In
regard to the question of permitting and licensing, he
stated that he is not aware of any cases in the Civil
Division during his tenure of 1.5 years that had to do with
the state being sued over wrongfully permitting or
licensing someone for some activity.
REPRESENTATIVE GRUENBERG requested that he do further
research regarding his concerns.
Number 0881
REPRESENTATIVE SEATON, in regard to [subsection (e)], noted
that the military person would be allowed a permit at a
lower age and could act as a resident in accompanying
nonresidents and nonresident alien permittees to take bear.
He asked, "Does that give us the same problems that
Representative Gruenberg's talking about, or not?"
MR. NORDSTRAND said he is not familiar enough with the bill
to answer that question. In response to a comment from
Representative Gruenberg, he said he would be happy to
[look into those questions].
Number 0831
REPRESENTATIVE HOLM said it seems to him that "you're"
alluding to the fact that maybe people could take away
their personal responsibility for their actions if the
state licenses them.
REPRESENTATIVES SEATON and GRUENBERG shook their heads no.
REPRESENTATIVE HOLM said, "You know, you get a hunting
license, you go out and shoot a bear that was in the
alders, and you go in after him; it isn't the state's
responsibility you made a stupid act."
Number 0793
REPRESENTATIVE GRUENBERG clarified that he just wants to
know whether there would be any liability if the state were
to license someone who then has some problems.
Number 0753
CHAIR WEYHRAUCH announced that public testimony on SB 297
was closed.
Number 0746
REPRESENTATIVE SEATON, in response to a request by Chair
Weyhrauch, moved to adopt CSSB 297(RES) [as the work
draft].
CHAIR WEYHRAUCH objected. [The question of whether to
adopt CSSB 297(RES) as a work draft was resolved later in
the meeting.]
REPRESENTATIVE SEATON moved to adopt Amendment 1, which
read as follows [original punctuation provided]:
Page 2, line 21 -line 25 after the word "guide"
and ending on the word "section."
Delete all material
Page 2, line 27, beginning of new sentence. "A...
Through page 3, line 4,
Delete all material
Page 3, line 23-29
Delete all material
Page 3, line 5-18
Delete all material
Deleting the material basically deletes a non-
resident's ability to take bear under these
special circumstances without a big game guide.
In all other situations we require big game
guides for non-residents. Deleting his [sic]
language conforms the bill to existing statutes
and most likely removes most objections from game
guides, who make their living from taking out
non-residents.
CHAIR WEYHRAUCH objected to Amendment 1.
REPRESENTATIVE SEATON mentioned residents and methods and
means, and said Amendment 1 would allows the good parts of
the bill to go forward, but would simply eliminate the
nonresident [and nonresident alien] section of the bill.
Number 0660
SENATOR SEEKINS responded that almost the entire intent of
the bill is to put more hunters in the field and there's
nothing in the bill about methods and means. He said there
are two choices: airborne hunting, or putting more hunters
in the field. He said he chooses the latter.
Number 0569
REPRESENTATIVE GRUENBERG said it sounds like the department
"felt that the goal was a valid management tool." He
stated that the question becomes one of, who should the
hunters be?
SENATOR SEEKINS said guides would be limited to three areas
into which they could bring an unlimited number [of
people]. He reiterated the issue of GMU 13, and said he is
trying to find the most acceptable method of reducing the
bear population in the safest way possible. In response to
a question from Representative Holm, he confirmed that he
has studied biology.
REPRESENTATIVE HOLM noted: "Sometimes empirical data does
not translate from ... what we're looking for, for
management tools. Many times [there are] genetic changes
[and] many times we get unintended consequences because we
... depress on species and all of a sudden something else
blooms and grows in a greater quantity someplace else." He
stated that he thinks it's important to keep in mind that
the ADF&G will be overseeing the process and will act to
ensure that the program works. He said he thinks that's
probably the best place to leave the analysis.
Number 0320
SENATOR SEEKINS opined that "that's" important because one
can't get to intensive management without that.
REPRESENTATIVE SEATON reiterated that he thinks allowing
unlimited guides in [those limited] areas is good, as is
not requiring a person to buy a tag up front. He
reiterated that his problem is in regard to the portion of
the bill addressing nonresidents and nonresident aliens; he
doesn't think that provision will constitute a significant
aspect of what the bill is going to accomplish. He stated
that his intent is to not destroy the program. He
concluded: "If we're willing to put ... the requirements
at risk for this benefit, for nonresidents and nonresident
aliens being guided as well as ... residents and others,
than so be it. But that's what the whole intent and the
construction of this amendment is about."
SENATOR SEEKINS said he respectfully disagrees.
REPRESENTATIVE SEATON maintained his motion to adopt
Amendment 1 [text provided previously].
Number 0199
CHAIR WEYHRAUCH said, "I'm going to withdraw my objection
to having [CSSB 297(RES)] before us, so we can deal with
the amendment."
Number 0166
A roll call vote was taken. Representatives Gruenberg and
Seaton voted in favor of Amendment 1. Representatives
Lynn, Holm, and Weyhrauch voted against it. Therefore,
Amendment 1 failed by a vote of 2-3.
Number 0107
REPRESENTATIVE HOLM moved to report CSSB 297(RES) out of
committee with individual recommendations and the
accompanying fiscal notes.
Number 0087
REPRESENTATIVE GRUENBERG objected for discussion purposes.
He requested that the Department of Law provide answers to
his previously stated questions, so that that opinion can
be made available to the next committee of referral.
CHAIR WEYHRAUCH noted that the bill would be heard next in
the House Resources Standing Committee. He said he thinks
Representative Seaton made some good points during the
discussion of Amendment 1, and stated his intent was to
talk about the issues some more. He indicated concurrence
with Representative Gruenberg's request.
TAPE 04-78, SIDE A
Number 0001
SENATOR SEEKINS, in response to a question from
Representative Gruenberg, reviewed the previously covered
subject of the second degree kindred rule. He illustrated
that a ten-year-old who has never been in the field before
could take his/her step-grandfather hunting. He said, "To
me, that's the threat to the guide industry, rather than
taking someone who's at least 21, has hunted big game for
at least two years, has harvested big game, and has passed
a course over at [the ADF&G] specifically toward safe
hunting of grizzly bear."
REPRESENTATIVE GRUENBERG asked, "Do you plan to do anything
about the problem there?"
SENATOR SEEKINS answered no. He said, "Quite frankly, I
would prefer that that was expanded just a little bit, ...
but I think that's even getting more dangerous."
Number 0090
REPRESENTATIVE GRUENBERG withdrew his objection. There
being no further objection, CSSB 297(RES) was reported out
of the House State Affairs Standing Committee.
The committee took an at-ease from 9:41 a.m. to 9:44 a.m.
SB 385-SECURITY;DIV. HOMELAND SECURITY/EMER. MGT
Number 0200
CHAIR WEYHRAUCH announced that the next order of business
would be CS FOR SENATE BILL NO. 385(JUD) am, "An Act
relating to homeland security, to civil defense, to
emergencies and to disasters, including disasters in the
event of attacks, outbreaks of disease, or threats of
attack or outbreak of disease; establishing the Alaska
division of homeland security and emergency management in
the Department of Military and Veterans' Affairs and
relating to the functions of that division and that
department; and providing for an effective date."
Number 0219
REPRESENTATIVE GRUENBERG moved to adopt CSSB 385(JUD)am [as
the work draft]. [No further action occurred regarding
this motion.]
Number 0230
JOHN CRAMER, Director, Administrative Services Division,
Department of Military & Veterans' Affairs (DMVA), reviewed
a portion of the sponsor statement [included in the
committee packet]. He listed the primary purpose of the
legislation as follows: One, to amend the existing civil
defense statutes to update them for homeland security
purposes; two, to amend existing disaster statutes to make
them applicable to homeland security in outbreaks of
disease; three, to combine two divisions in the DMVA into
the single division of the Division of Homeland Security
and Emergency Management; and four, to establish the
Homeland Security And Emergency Management subcommittee as
a legislative subcommittee of the Joint Armed Services
Committee.
Number 0294
MR. CRAMER stated that the civil defense chapter in the
DMVA statute, AS 26.20, was enacted in 1951, during the
Cold War. The proposed legislation would update that
chapter to make it relevant to homeland security; it
specifies that DMVA shall coordinate homeland security and
civil defense functions in the state, in cooperation with
and with assistance from other state agencies. It would
authorize the DMVA to undertake certain homeland security
planning and preparedness activities, and it also repeals
obsolete and potentially far-reaching civil defense powers
and requirements existing today. The bill would authorize
the governor to declare an emergency and to exercise
specified emergency powers in the event of a terrorist
attack or a credible threat of imminent attack in the
state. Mr. Cramer explained that in order for a situation
to be considered a credible threat, it would require
certification by the commissioner of DMVA, in consultation
with the commissioner of the Department of Public Safety
(DPS), based on specific, reliable information that there
is a high probability of an attack in the near future. The
bill would also authorize the governor to declare a
disaster, and exercise his/her disaster powers in the event
of an attack or imminent threat of attack, or an outbreak
of disease or an imminent threat of an outbreak - again,
requiring certification of the threat. He noted that such
declarations would be effective for a maximum of 30 days,
and the legislature may also terminate the declared
emergency or disaster at any time.
Number 0749
SENATOR FRED DYSON, Alaska State Legislature, as chair of
the Senate Health, Education and Social Services Standing
Committee ("SHES"), sponsor of SB 385, noted that the
fundamental change [proposed via SB 385] reflects the
difference of the threats that are faced in what he termed
"asymmetrical warfare," where there is no clearly defined
enemy from a specific location. He opined that it may be
necessary to intervene before an attack happens, and the
bill would allow the department and the governor to
initiate action when there is a credible threat of an
imminent terrorist attack. He described preparations that
had been made during a recent threat of attack on Valdez,
Alaska, to protect the area, though no attack was
forthcoming. He indicated that the reason for that may
have been that "the bad guys saw the preparation and quit,"
or it may have been that the information regarding the
threat may not have been accurate. However, the bill would
authorize what the department thinks needs to be done and
what was done at the time [of the threat to Valdez].
SENATOR DYSON noted that the bill also addresses the issue
of roadblocks. He said it would allow people the
opportunity to turn around if they come across a roadblock.
He reiterated some of the other changes that Mr. Cramer had
previously reviewed. He stated his belief that the
government needs to have the option of acting ahead of an
attack.
Number 0735
SENATOR DYSON emphasized the importance of maritime safety.
He noted, "Ninety-five percent of our freight moves ... by
boat and without that we're in trouble." He said there are
a lot of hazardous materials that come out of Prince
Rupert, Canada. He also noted that 600,000 people come by
cruise ship, and mentioned the oil out of Valdez. He said,
"Those things move us up on the probable targets that would
attract terrorist attention." He indicated that a big
impact would be made in just 3.5 days without the ability
to ship oil to the Lower 48.
SENATOR DYSON reminded members that he is on the Joint
Armed Services Committee, and on the Military and Veterans
Affairs finance subcommittee. He continued as follows:
I did not want to ask the Department of Military
& Veterans' Affairs questions about their
preparedness in open meetings, because I would
not want our enemies to know even the little bit
that I know, let alone the embarrassing questions
that I might want to be asking these fellows
about their preparedness. So this bill
authorizes a vetted subcommittee of military and
veterans' affairs who must pass a security test
[and] sign an agreement on confidentiality to be
insiders and be ... the legislature's audit and
oversight.
Number 0864
REPRESENTATIVE GRUENBERG, regarding Senator Dyson's last
point, noted that the House Special Committee on Military
and Veterans' Affairs would normally have oversight "on
that and on this bill." He asked how Senator Dyson would
feel about having that committee involved.
SENATOR DYSON replied, "I'm not sure that's precluded."
REPRESENTATIVE GRUENBERG said he would like to see that put
in the bill, because normally those on that committee would
have jurisdiction over the department.
SENATOR DYSON responded, "The way it's set up now is as a
subcommittee of that, and if you have members of the
special committee that are also ... [members] of the joint
committee, they could certainly be a part of it." He
cautioned that adding an amendment so late in this process
may complicate matters.
REPRESENTATIVE GRUENBERG said he doesn't want to jeopardize
the bill, but he thinks it's a good idea.
Number 0980
SENATOR DYSON stated that a fair amount of effort was made
to "get everybody on board," including maintaining active
communication with the [Alaska Civil Liberties Union
(AkCLU)].
Number 1007
JAMES N. BUTLER III, Attorney at Law, Baldwin & Butler,
LLC, informed the committee that most of his work involves
oil companies and public sector clients in the area of
incident management, and emergency response and
preparedness. He noted that he has served for
approximately one year as the public representative on the
State Emergency Response Commission (SERC), and that SERC
has not had a chance to take a formal position on the
proposed legislation.
MR. BUTLER stated that he is in complete agreement that the
proposed authorities to act and take what are anticipated
to be fairly new powers - such as limiting public access to
open areas - is an important step forward. He expressed
concern, however, that there is more complexity to the bill
than seems to be suggested. He illustrated that it's not
crystal clear who, specifically, at the state agency will
be in charge of these events. Noting that the bill uses
the term "coordination" a lot, he warned that providing for
a unified command structure should be a part of the
planning process.
MR. BUTLER said he hopes that the committee has had a
chance to review administrative order 170 (AO 170), which
he said was developed years ago as an attempt to develop an
actual standardized system to manage the resources used in
emergency management in Alaska. He stated:
Recognizing that the homeland security threats
are, in many cases, almost more of a police
function than an emergency management function, I
think that ... we might be missing an opportunity
to make sure that Alaska - like many other states
- has a system that is required to be followed in
order to get some of the pass-through money
ensuring standardization and more effective use
of limited resources.
MR. BUTLER directed attention to page 19, Section 14. He
said he's heard a lot of testimony regarding issues of
borders, oil terminals, marine trade, and cruise ships. He
said he thinks it's important to understand that the
requirements of the chapter may not apply to many of the
examples that have been used, because most of those
facilities are already subject to federal homeland security
requirements. He stated that he thinks this is an example
of why it's so important to understand, holistically, how
this "fix" is going to fit in to that federal system. He
said he's aware that the both DPS and the Department of
Transportation & Public Facilities (DOT&PF) have the right
to limit access to roads. He continued as follows:
I think it's important for the committee to look
at the section that describes the power of this
new division, and understand what it is doing.
It's creating a police function authority within
the division to investigate and assess threats
from attack. It's looking at organizing the
chains of command and, in fact, coordinating the
deployment of the state militia. While I don't
have a problem with that, necessarily, I want to
make sure that the legislature has the
opportunity to clearly understand that we'll be
relying on future plans and, to the extent that
there's assumptions in those plans, I think none
of us want to see that happen.
MR. BUTLER stated that while he applauded the legislature's
interest to monitor and keep track of the developments in
"this particular area," he is concerned that more levels of
oversight would be created, which would create more
potential for confusion over who is responsible for what.
He suggested that the committee get information on SERC,
which has many of the same responsibilities that this
committee would have regarding the response to a disaster.
He indicated he understands that the committee is
considering the issues revolving around pre-disaster or
pre-attack. He said, "So, it's adding more pieces to the
equation that might be a net benefit, but I think that
before we create committees that have requirements to meet
in secret to talk about how planning occurs, I think we
should tread cautiously."
CHAIR WEYHRAUCH announced that SB 385 would be held over.
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES
Number 1330
CHAIR WEYHRAUCH announced that the last order of business
would be CS FOR SENATE BILL NO. 354(STA) am(efd fld), "An
Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human
Rights; and making conforming amendments."
Number 1360
LISA M. FITZPATRICK, Esq., Chair, Human Rights Commission,
Office of the Governor, said she would focus on the
provisions of the bill that contain the remedies that would
be available to the commission in the event that there is a
finding of discrimination. She reported that the
commission is contacted annually by thousands of
individuals looking for information and relief. Many of
those cases are not limited by jurisdiction, and so the
commission actually ends up opening files on approximately
450 cases annually. Of those cases, Ms. Fitzpatrick said,
most are resolved short of investigation and litigation.
MS. FITZPATRICK said that historically, when there is a
finding of discrimination, the commission has been
authorized to put the individual who has been discriminated
against back in the same state that he/she would have been
[in] before the alleged discrimination occurred. She
mentioned language in statute that allows the commission to
award any appropriate relief. She noted that the language
says, "including but not limited to" and then she
enumerated several forms of relief.
MS. FITZPATRICK said that SB 354 would modify that
[statute] by allowing the commission to only award a few
limited types of relief, which would include "back pay and
front pay." She said the commission agrees those are
important forms of relief, but not the only forms of
economic relief that an individual ought to be able to
obtain if he/she goes to the commission for a
determination. The commission would also be allowed to
order an employer to reinstate an employee, which is
historically one of the mainstay forms of relief that
people are afforded. She continued as follows:
If you have an individual who requires a
reasonable accommodation for their disability, it
does not specifically allow the commission to
authorize and order a reasonable accommodation
for the person with the disability. It does not
require the payment of retirement benefits, for
example, if an individual has been discharged for
discriminatory reasons. It doesn't allow for
lost benefits that would have been included in
the paycheck. So, for example, if you have an
individual who is hired to work in a remote site
and housing is a part of their ... compensation
package but, as a result, their actual monetary
paycheck is reduced, it does not specifically
allow the commission to award compensation ...
that would make up the difference. ...
And there are ... varying situations under which,
... if an individual is discharged, they would
lose their benefits of health insurance. But
[also] there are actually instances where we are
aware of an employer ... keeping an employee, but
taking away their medical benefits when they
became aware that the individual was pregnant.
And it's hard to conceive of a justification that
would be nondiscriminatory for that kind of an
action, but the result is that then the employee
is not covered by insurance and is in a situation
of ... having to subsidize their pregnancy-
related costs out of their own pocket. And under
the present statutes it's not clear that ... the
commission could do anything to assist that
individual under those circumstances.
There are other instances, as well. For example,
... if an individual has been discharged, the
absence of any relief pertaining to vesting in a
retirement plan or bonus, ... vacation pay, ...
or restoration [of] seniority, reimbursement of
other medical costs or other out-of-pocket
expenses are not addressed in this bill. And
these are all forms of relief that the commission
has historically awarded individuals in varying
forms. Obviously, in any one of these there's a
duty on the part of the individual to mitigate
their damages, to try to offset any costs that
they might incur or have incurred. But
[historically] the commission has been enabled to
... [make] these individuals ... whole, and we
are concerned that by taking away that form of
relief, ... these individuals are going to be
coming up short and that there's realistically no
other form [of relief] available to them.
The Department of Law has argued in the past that
these individuals can just go to the court system
and file a case, and in some instances that is
correct. But in the general run-of-the-mill
case, there are a number of reasons why it is not
a realistic alternative for these individuals.
First off, the average case that the commission
handles where it makes a finding of substantial
evidence that there has been discrimination
involves a small amount of money in the scheme of
cases ...
CHAIR WEYHRAUCH interjected to request that Ms. Fitzpatrick
continue with her testimony at a future meeting.
Number 1650
SENATOR GRETCHEN GUESS, Alaska State Legislature, spoke as
a member of the Senate Rules Standing Committee ("SRLS"),
sponsor by request of the governor. She stated that she is
"fairly passionate about this bill" and some changes that
she would like considered.
SENATOR GUESS directed attention to Section 4, which is in
regard to "Dismissal of complaint without prejudice", and
said she is concerned about the broad authorization it
would give to any executive director to dismiss a case.
She said she knows that the commission is overwhelmed and
needs to start being able to dismiss cases without going to
full hearings. Notwithstanding that, she pointed out that
there is not concurrence with the commission on any of the
dismissals, so it would give the executive director full
authority to dismiss cases, without any concurrence or
review by the commission. The specific dismissals that
Senator Guess said were of concern to her are listed on
page 3: [subsection (a), paragraphs] (4), (6), (8)-(9).
Paragraph (4) read: "(4) a hearing will not benefit the
complainant". Paragraph (6) read: "(6) A hearing will not
represent the best use of commission resources". Paragraph
(8) read: "(8) the probability of success of the complaint
on the merits is low". Paragraph (9) read: "(9)
proceeding to a hearing will not serve the public
interest".
SENATOR GUESS offered her understanding that paragraphs (4)
and (8) deal in prejudging the situation, while paragraphs
(6) and (9) are very subjective statements for one person
to make about an important issue. She asked the committee
to consider whether it wants an executive director to have
that much authority in statute, noting that the reason for
the proposed dismissals are that [the commission] is too
overwhelmed. However, from a policy perspective, she
stated that she is not sure why the bill doesn't "go
towards prioritizing versus dismissing." She clarified, "I
don't mind a prioritization if we don't have enough
resources, but I'm a little concerned when we start
dismissing cases."
Number 1807
SENATOR GUESS directed attention to some of the language
being added to page 4, lines 17-18, which read: "The
commission may not order an award of noneconomic or
punitive damages in any case". She stated that the
withdrawing of noneconomic and punitive damages prevents
the commission from considering creative alternatives that
would hopefully stop complaints in the future. She said
she thinks the commission has done a good job at being
creative about solutions, "both to make the person whole
and, hopefully, helping that employer so there's no more
complaints in the situation." She continued as follows:
I [understand] wanting to make it clear to the
public ... [that] it can't think that they're
going to come and get a million-dollar judgment
from [the] Human Rights Commission. On the other
hand, I don't know if limiting the commission is
the way to achieve that - if having very strict
policy and regulations around that is the way to
achieve it.
Number 1887
SENATOR GUESS turned to the issue of front pay and the
proposed limits on such. She noted that it used to be
unlimited front pay, and explained that means that if she
were discriminated against at the beginning of the process
by never being hired, and it was found to be
discrimination, the front pay would be what she would have
been paid. She mentioned a considered compromise in the
Senate of going to two years, the average length of one of
the cases, and remarked that she is not certain how it
ended up being one year, but surmised that there wasn't a
lot of thought put into it and she just happened not to be
in committee that day. She indicated that this is another
issue for the committee to consider.
Number 1929
SENATOR GUESS, in response to a question, offered her
understanding that back pay exists only if a person is
hired and then fired. She indicated that the Senate had
not been able to "flesh that out" and the commission still
"had some problems with it."
REPRESENTATIVE SEATON responded, "But if the question comes
down that after determination is made, everything beyond
that would have been considered back pay, and we are
talking about a year in the future, you don't have a
problem with that?"
SENATOR GUESS answered no. She said she thinks that's a
reasonable policy. She said, "It's having a clear
definition, which, on the Senate side, it wasn't."
[SB 354 was held over.]
Number 1966
The meeting was recessed at 10:18 a.m. to a call of the
chair.
Number 1970
CHAIR WEYHRAUCH called the meeting back to order at 1:06
p.m. Present at the call back to order were
Representatives Holm, Seaton, and Weyhrauch.
ADJOURNMENT
There being no further business before the committee, the
House State Affairs Standing Committee meeting was
adjourned at 1:06 p.m. [Due to technical difficulties, the
adjournment was not recorded.]
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