Legislature(1999 - 2000)
02/24/1999 03:10 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE
February 24, 1999
3:10 P.M.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Robin Taylor, Vice Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Sean Parnell
MEMBERS ABSENT
Senator Georgianna Lincoln
COMMITTEE CALENDAR
SENATE BILL NO. 74
"An Act relating to hunting on the same day airborne."
-MOVED SB 74 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 74 - No previous action to consider.
WITNESS REGISTER
Mr. Geron Bruce, Legislative Liaison
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99802-5526
POSITION STATEMENT: Opposed SB 74.
Mr. Steve White
Department of Law
P.O. Box 110300
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 74.
Mr. Patrick Wright
Scientific Management of Alaska's Resource Treasury (SMART)
P.O. Box 244001
Anchorage, AK 99524
POSITION STATEMENT: Supported SB 74.
Mr. Dave Kelleyhouse
Alaska Outdoor Council
P.O. Box 81452
Fairbanks, AK 99708
POSITION STATEMENT: Supported SB 74.
Mr. Rod Arno
P.O. Box 1410
Wasilla, AK 99645
POSITION STATEMENT: Supported SB 74.
Mr. Wayne Kubat
P.O. Box 874867
Wasilla, AK 99687
POSITION STATEMENT: Supported SB 74.
Mr. Rick Swisher
Quicksilver Air
2721 Cormorant St.
Fairbanks, AK 99709
POSITION STATEMENT: Supported SB 74.
Ms. Marybeth Hennessy
Forty Mile Fish and Game Advisory Committee
P.O. Box 892
Tok, AK 99780
POSITION STATEMENT: Supported SB 74.
Mr. Wayne Heimer
1098 Chena Pump
Fairbanks, AK 99709
POSITION STATEMENT: Supported SB 74.
Mr. Joel Bennett
15255 Pt. Louisa Rd.
Juneau, AK 99801
POSITION STATEMENT: Opposed SB 74.
Mr. Richard Wallen
2940 Douglas Hwy.
Juneau, AK 99801
POSITION STATEMENT: Opposed SB 74.
Mr. Bill Hagar
Alaska Wilderness Council
431 Gaffney Rd.
Fairbanks, AK 99701
POSITION STATEMENT: Supported SB 74.
ACTION NARRATIVE
TAPE 99-11, SIDE A
Number 001
SB 74-SAME DAY AIRBORNE HUNTING
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:10 p.m. and announced SB 74 to be up for consideration.
SENATOR PETE KELLY, sponsor of SB 74, said this is not an aerial
wolf hunt. The bill reinstates a valuable management tool to ADF&G
and for the benefit of the wolf populations that may have lice
infestation and disease. Current statute would preclude the
Department from taking immediate action without Board approval of
a control program. He said the first line of the bill still says
that a person may not shoot or assist in the shooting of a free
range wolf...if that person has been airborne.
Current wording of AS 16.05.783 has the appearance of allowing the
Board of Game to authorize a wolf control program using aerial
shooting, but the language chosen would make that nearly impossible
without legal challenge. The use of the terms "adequate data," "no
feasible solution," and "biological emergency" are problematic both
from biological and legal points of view. Rather than establishing
workable standards for determining when predation control is
appropriate, the language creates ambiguity in that regard, which
will lead to endless legal challenges.
This bill would preserve the original stated intent of the 1996
ballot measure, but would more clearly provide the Board and
Department the latitude to employ aerial shooting for management
purposes. Management actions should not be considered "hunting"
when performed by Department personnel or persons acting as agents
of the State.
MR. GERON BRUCE, Legislative Liaison, Department of Fish and Game,
testified that SB 74 does three things. First, it removes the
requirement that before an aerial wolf control program may be
authorized, the commissioner must make a written finding
demonstrating that biological emergency exists and there is no
other feasible solution to eliminate the biological emergency.
Second, the bill deletes the definition of biological emergency
from statute. Third, it authorizes the use of non-department
personnel or agents in the implementation of a departmental
predator control program.
The Department acknowledges that biological emergency as defined in
current law is a difficult term to deal with in large part because
of the use of the term "irreversible decline." There is an
internal conflict in the definition of when an aerial wolf control
program could be authorized if a population is in or projected to
be in an "irreversible decline." He said they are willing to work
with the sponsor on a new definition of biological emergency that
would address and fix that problem.
Before any predator control plan is initiated, the Department will
need to go through a process to demonstrate that exceptional
circumstances call for a control program. Events over the last 15
years have demonstrated that the public does not consider lethal
wolf control, for example, to be a routine or standard element of
good wildlife management. Exceptional need and circumstances will
have to be demonstrated through an open and public process.
This process could be a special management planning process like
the one the led to the adoption of the Forty zMile caribou plan or
it could be conducted within the structure of the Board of Game
process. Such a process would need to contain the following
elements. First, a strong scientific demonstration that predation
is the fundamental cause of a decline or continued low level of a
particular prey population. Secondly, in cooperating with Board of
Game, the social and economic benefits associated with a control
program would have to be weighed and the anticipated benefits
determined to exceed the costs. Finally, there would have to be
indication of public acceptance among Alaskans for the proposed
control program. Experience has shown that any wolf control
program will be controversial and the ability to successfully carry
out and sustain such a program will depend on an objective and
thorough process that gains the acceptance of Alaskans.
The Department would like to voice concern over the use of non-
agency personnel in conducting any departmental predator control
program. Certainly, there may be a need for non-departmental
personnel to fly the helicopters or fixed wing aircraft that would
be used in a predator control program. The authority for the
Department to contract for these services needs to be clear and he
said they would work with the sponsor to craft language, if it is
lacking in current law.
However, the Department does not believe that it is appropriate for
non-agency personnel to be employed in the taking of the animals
subject to a department predator control plan. Again, because of
the extreme sensitivity and controversial nature of these programs,
the Department believes this activity is best restricted to agency
personnel.
Number 130
SENATOR HALFORD asked how many wolves were killed last year under
current State regulations.
MR. BRUCE responded he thought hundreds were typically killed.
SENATOR HALFORD asked if it was over 1,000.
MR. BRUCE said he really didn't have the figure.
SENATOR HALFORD asked if the Department supported the current level
of harvest of wolves.
MR. BRUCE'S answered that they do; the Department has very
aggressive opportunities for people to take wolves through hunting
and trapping regulations.
SENATOR HALFORD asked if "free ranging wolf" in current law
included a wolf in a trap.
MR. STEVE WHITE, Department of Law, inserted that this law was
adopted by initiative and that the definition of "free ranging" is
in statute.
Number 163
MR. PATRICK WRIGHT, SMART, said they are one of the litigants of
the court case that went through the Superior Court in Fairbanks
and the Supreme Court pertaining to the same day airborne
initiative. He commended the Legislature on clearing up the
language in this statute. This is a good example of why ballot
measures are not appropriate for fish and game management subjects,
because they may be very complex. The only things voters have to
vote on in the initiative process is the actual language that is
placed on the ballot. He said the important case numbers are S-
08676/S-08685 and an opinion 6055 and Superior Court case 4FA-97-
879 and 4FA-97-2337 CI. The Alaska Wildlife Alliance had an amicus
cur brief in the Supreme Court case making it clear that they
wanted wildlife management to be available to ballot measures.
He pointed out that Section 8 of the Constitution provides for
common use of our fish and wildlife resources and he wanted to keep
that concept in mind. He said they want to make sure ADF&G has the
ability to manage wildlife and that the public has involvement
through the Board and Advisory Committee processes.
MR. DAVE KELLEYHOUSE, Alaska Outdoor Council, supported SB 74. He
said the ballot initiative was funded mostly by outside anti-
hunting groups, most notably the Defenders of Wildlife. Alaskan
voters were told that the initiative only prohibited Alaskan
hunters from shooting fur bearers in the same day airborne, but
this was already against Alaska hunting regulations. The voters
were also assured that the ballot measure allowed ADF&G biologists
to use same day airborne shooting to control wolf predation, but
this too was a skillful deception. The Knowles administration
issued a gag order discouraging state game managers at that time
from informing voters of the real impact this initiative would have
on wildlife management in the future. There was no opportunity for
informed debate during the campaign for this initiative.
Language in AS 16.05.783 appears to allow same day airborne wolf
control programs, but realistically, no state program can be
conducted with the current wording. A basic premise for sound
resource conservation is for biologists to be able to take timely
and appropriate steps to avoid biological emergencies. Yet, the
law actually requires managers to prove the biological emergency
already exists before action involving same day airborne taking can
be authorized.
MR. KELLEYHOUSE said that SB 74 does not overturn the vote of the
people; it clarifies the ability of the State to conduct authorized
wildlife management programs. SB 74 deletes all of the unnecessary
complex language in the initiative and substitutes an unambiguous
allowance for the use of same day airborne taking in authorized
game management programs. In doing so, SB 74 will save the State
millions of dollars in dealing with lawsuits in the future, because
it clarifies terminology. The term "biological emergency" is
disturbing, because the commissioner is required to demonstrate
that there is a biological emergency with adequate data and the
definition is an "irreversible decline." Even if a population of
game declines dramatically because of bad weather, in subsequent
years, if there is a slight increase in that diminished population,
by definition it is not in an "irreversible decline." Secondly, no
professional biologist would risk their credibility by identifying
wolf predation alone as the sole cause of a prey decline.
Current language in AS 16.05.783 also requires the commissioner to
demonstrate with adequate data that there is no feasible solution
other than airborne wolf control to remove a hypothetical
biological emergency. Opponents to sound game management and
hunting can always go to court with the argument that feasible
solutions other than airborne control exist. They can argue that
a complete hunting closure on moose, caribou, and other game,
surgical or chemical sterilization, and the use of poison are
feasible solutions - even though neither biologists nor the public
would bring back indiscriminate use of poison favored by the
federal government in the 1950's.
In his opinion, based on 20 years of working with this topic, same
day airborne taking of wolves is the most effective, cost
efficient, selective and human way to halt the decline of many
important big game prey populations and allow those populations to
recover to reasonable levels of abundance. This is in most cases,
except for habitat limitations. During his career, he never
experienced a wolf control program employing same day airborne
taking that in any way threatened Alaska's wolf population.
Certain programs approved by the Board of Game were based on the
best available biological information and were conducted according
to strict guidelines to ensure conservation of both predators and
prey. SB 74 leaves that responsibility for the safeguards to the
Board of Game, ADF&G, and the public process.
One other point MR. KELLEYHOUSE raised is that the current
infestation of wolves with dog lice is an emergency, but is not
covered by the definition. As director of the Division of Wildlife
in 1994, he directed his staff to go after two louse infested
wolves that were radio collared and had left the Kenai Peninsula
and gone into the Kink River drainage. His directions were really
clear - either dart the wolves and treat them with drugs, if
possible; and if not possible, shoot them both. He had the
authority to do that in the absence of AS 16.05.783. Now it's
questionable whether the director would have that authority.
In response to Mr. Bruce's comments, he said before there could be
any kind of a wolf control program using same day airborne taking,
it would have to be an open public process, MR. KELLEYHOUSE said he
took that to mean a protracted process, not merely a Board of Game
meeting. One of the basic premises of game management is to take
action before a crisis situation develops. Going into a protracted
public process would short-circuit that.
SB 74 does provide for qualified members of the public to
participate, if authorized by the Board, to act as agents of the
State. This language mirrors language in the federal airborne
hunting act which recognizes the ability of states to use agents of
the state and still be in compliance with federal law. He
suspected, in the future, both budgetary and personnel constraints
may well warrant reliance upon qualified members of the public.
The Department did this in the early 1990's in Unit 13. That
worked very well and he didn't see why that wouldn't work in the
future. He thought the Administration was underrating the Alaskan
public's ability to understand common-sense solutions.
Number 350
MR. ROD ARNO, Palmer resident, supported SB 74. Clearly there is
a public process that goes through the Administrative Procedures
Act through Title 16 to allow public input into the issue of
predator control which this bill will allow to occur again thus
fulfilling the mandate of Alaska's Constitution, Article 8, Section
4 on sustained yield of Alaska's wildlife resources in accordance
to the preference among beneficial users.
The Alaska Outdoor Legacy, a state-wide comprehensive outdoor
recreation plan, found in Alaska in 1997, that of the activities in
rural areas, hunting and fishing were the two highest priorities.
In the railbelt area: Kenai, Anchorage, and the Valley, among men,
fishing was first, hunting was second. Clearly there is a mandate
from the public to be able to hunt. A survey conducted by ADF&G in
1994 asked, "Do you like to eat game meat?" Seventy-five percent
of Alaskans state-wide said they did. In order to eat game meat,
something has to be done about the amount of predation that's
occurring. SB 74 will allow those Alaskans who want to harvest
wildlife to be able to go through the Board process and they would
have the authority to implement that management.
MR. WAYNE KUBAT, Kasilof hunting guide for 14 years in Unit 16,
said he has seen a definite decline in the moose in the last 10
years, especially in the last five years - the same time that same
day airborne hunting of wolves was disallowed. The wolves are
increasing and the moose are decreasing. He said the trappers are
not staying ahead of it. He supported SB 74 the way it is written.
He totally disagreed with the ADF&G comment about only department
personnel should be doing this.
MR. RICK SWISHER, Quicksilver Air, said he contracts to fly a lot
for the ADF&G both state and federal. He has been involved in a
lot of different projects. In the Palmer area, he knows, there was
an estimated 45 wolves and when he did an intensive survey with the
Department, there were actually 120 wolves.
MR. WAYNE HEIMER, Fairbanks resident, said he thought the
initiative passed through the use of deceit and scullduggery. That
housewives in Anchorage voted for it. He supported SB 74.
SENATOR KELLY asked Mr. Heimer to state his credentials.
MR. HEIMER responded that he has lived in Alaska for 33 years and
worked for ADF&G for 25 of them.
MS. MARYBETH HENNESSY supported SB 74, but wanted point #2 amended
to allow members of the general public to participate in same day
airborne hunting of identifyied predators in designated predator
control areas.
Number 444
MR. JOEL BENNETT, Juneau resident, testified that he has lived in
Alaska for 30 years and has been a licensed hunter for each of
those years. He served 13 years on the State Board of Game between
1976 and 1989. He was the co-sponsor of the Wolf Management
Commission that passed the initiatives and reviewed some of the
history of the issue with the committee.
MR. BENNETT said he really believes that the prevailing public view
does not support any serious change to the present statute. To do
so would invite needless divisiveness, erode the public's faith in
the democratic process, and damage the best interests of the State.
The recent history behind AS 16.05.783 is that, for many years,
many on the Board of Game felt that the use of airborne wolf
hunting was out of step with responsible game management in the
prevailing public view and yet, no change occurred while year after
year it tied up untold state resources time and money. Very few
programs were ever implemented that resulted in the airborne
shooting of wolves on behalf of the State.
In 1995, he commissioned a Dittman Research poll to gauge how the
public really felt about this. Sixty three percent of those
surveyed supported the statute that's in front of them. Seventy-
one percent felt that "land and shoot" was unsporting and against
the principals of fair chase. So they waged a campaign to show
what a cross section of the public really felt. They created a
steering committee which included a past commissioner of ADF&G, an
ex-governor, and ex-lieutenant governor, an ex-regional supervisor
of game, and four past Board of Game members.
In November 1996, proposition 3 passed by a 58.5 percent of the
vote. It achieved a majority vote in all but six of the 40
election districts in the State. MR. BENNETT thought Mr. Heimer
was in error saying that middle aged people in Anchorage passed
this; it was passed in towns and villages like Delta Junction,
Chugiak, Wasilla, Palmer, Nome, Bethel, Aniak, Arctic Village,
Koyukuk, Kivalina, Anektuvik Pass, Barrow, Wrangell, Craig, and
Kake, to name just a few. He had a complete district-by-district,
village and town break down of the vote which he left with the
committee to demonstrate this was a broad geographical vote.
It has been two years since the statute passed and there has been
no crisis of game management, no widespread clamor for wolf control
and the new law has not yet been applied, he said. It's easy to
sit by the side and say what's wrong with the law before it's even
tested. No law is perfect, however, and there are ways to improve
statutes and this one could be improved to some extent, but the
basic components of this law are supported by a broad section of
the public. In anticipation of efforts like this to modify the
law, his organization commissioned another Dittman state-wide poll
asking whether the State legislature should repeal the current ban
on same day airborne wolf hunting, 70 percent, again, said, "No."
Again the geographical distribution was broad. Sixty-five percent
in the rural areas, 62 percent in central Alaska including
Fairbanks, and 76 percent in Anchorage and Southeast. The public
just does not want to see this law significantly changed.
There are some who say some of the language is ambiguous and will
lead to litigation, but he believes this is unfounded. So far, no
situation has arisen to test the workability of the law and it is
a disservice to the public to conclude that it is unworkable. If
there is a need to more precisely define a term, such as
"biological emergency," the Board of Game can do it by regulation.
The commissioner of ADF&G has sufficient latitude and discretion to
make the threshold determinations under the law.
The criticism that diseased wolves cannot be removed from
population is absurd. His committee wrote a letter early in the
campaign and said that this would fall within the discretion of the
commissioner of ADF&G under his other powers to remedy a situation
that fell under a scientific and life-threatening biological
situation with regard to infected wolves. If there is still a
question about that, he thought it would be proper to amend the
statute with the exemption saying any diseased wolves could be
removed regardless of the provisions of the statute.
Regarding the Chairman's question about the number of wolves taken,
he said that at least since 1995 when high numbers (above 1,000) of
wolves were taken, the last year he could get information for,
1997/98, it was 1,080. The year before that it was 1,170, the year
before that somewhat higher. The point is that high levels of
wolves have been taken since the mid-90's and since airborne
hunting has been restricted. So people don't seem to have a
problem getting wolves in other ways.
MR. BENNETT summarized that the two key components of the
biological emergency condition that would have to arise before the
Department could institute this kind of control is a proper and
responsible form of game management. Giving the public the land
and shoot power back is clearly something the State does not want
to indulge in again.
SENATOR MACKIE said he appreciated him bringing the polls by and
wanted to see how the questions were asked. He believes when you
do polling, you can sometimes get close to a desired result based
on how you asked the question and the same thing with ballot
initiatives depending on how the question is defined. He is not
suggesting that is what they did and asked if Mr. Bennett's
organization had done any polling in terms of asking the people
whether or not they thought there should not be intensive game
management and the wolf population should be allowed to continue to
grow even if it meant to the point of extinction or significantly
reduced game populations which would make that game not available
to the general public for personal consumption.
MR. BENNETT responded that in their polling they did not ask about
intensive game management or whether they felt other methods would
be appropriate; they asked only about the use of aircraft, because
that was the one burning part of the whole issue through the last
30 years that has tied everything up. He said the exact wording of
the initiative was, "Would you vote for this? Did you vote for
this? If you had to vote again now, would you vote for it again
now." The question on the ballot initiative was, "No person may
shoot a wolf, coyote, wolverine, etc. the same day that person is
airborne. However, if authorities conclude that a biological
emergency does exist, the same day aerial wolf control program
conducted by Fish and Game personnel only may be authorized, would
you vote for or against that initiative."
MR. BENNETT said he thought the public supported any reasonable
method of enhancing game populations. There has to be some
parameters to it; poison being one that everyone seems to agree
about. He asked what's next after poison and he thought aircraft
followed closely, because of a lot of deep-seated objections to
that form of that level of technology applied to animals - even if
it's in a control program. He said they don't use poison in a
control program, either.
SENATOR MACKIE said the part about an employee of the ADF&G under
a management program being allowed to do that was also a part of
the 70 percent or so who approved it. The language that the
senator from Fairbanks is offering says, "An employer agent of the
Department who is part of the game management program is authorized
to do this." His experience is that people do object to same day
airborne hunting, but when it's dealing with proper game management
by professional management people and the objectives are to protect
the game populations for all people of Alaska, he thought they
would get a totally different response and asked if Mr. Bennett
agreed with that.
MR. BENNETT said he thought question the poll posed used
"department personnel" because that is what the statute says.
Senator Kelly is seeking to modify it by adding a very significant
part of the issue which is whether or not public permits would be
issued for people who have conducted these activities in the past
under the land and shoot laws and would like to do it again. They
are the most qualified, but they are probably the least
controllable and the least trusted by the public. He thought there
would be objections to that addition.
SENATOR MACKIE said he thought Mr. Bennett had a problem with an
agent of the Department doing it, not
TAPE 99-11, SIDE B
Number 590
someone who's on ADF&G's payroll and asked if he opposed use of
aircraft under the management system.
MR. BENNETT answered no, but he emphasized what they tried to do in
crafting the language of the initiative is to set it up so there
wouldn't be a continuous use of this method every time someone
wanted to enhance the moose or caribou population. Rather that the
method would only be employed when there was extraordinary
circumstances. If people have a problem with "irreversible
decline," they should work on a better way to say it. What's
important to his organization and to the public is that it not be
a routine strategy - because of the controversial aspects.
MR. RICHARD WALLEN, Juneau artist and long time resident of Alaska,
said shortly after statehood, he worked for five years as a
wildlife biologist for ADF&G. He served a term on the Alaska Board
of Game from 1989 - 1992, more recently he was a member of the
steering committee for the initiative that banned same day airborne
hunting. On issues like SB 74, he finds it helpful to think of the
Alaska public as divided into two broad publics, hunting and non-
hunting. During his years on the Board, he observed that the much
larger non-hunting public is, for the most part, accepting and
tolerant of hunting, especially subsistence hunting - provided that
it thinks wildlife is getting a fair shake.
In Board meetings lasting six weeks and dealing with more than 400
proposals, his experience is that most issues were deliberated and
settled without wide-spread controversy or bitterness. But there
are a handful of exceptions and airborne hunting is one of them.
Others include predator control programs such as poison and
bounties, running down animals with snowmachines, bear baiting, and
attempts to open popular areas close to hunting, such as Seymour
Canal and McNeil River. When these are proposed or approved, such
relatively few flash point issues ignite public outrage and it
polarizes hunters and pushes the non-hunting public in the
direction of an anti-hunting public. The State gets a black eye,
business suffers and, for example, in 1992 it cost many millions of
dollars in Alaska trip cancellations because of wolf control
programs. Hunting was put in a very bad light.
MR. WALLEN said we have been through this cycle more than enough
times. He has heard this issue criticized as "ballot box biology."
In truth, some issues including this one transcend biology. For
example, in the early days Alaska paid bounties on almost 100,000
bald eagles. It's not a proud record, but there was no biological
reason against killing some of the eagles. Fortunately, public
sentiment against the practice, for reasons that transcend biology
finally prevailed and Alaska's practice of paying bounties on the
national bird was discontinued.
More than 100 years ago, hunters began addressing the area between
areas that might be biologically permissible, but unacceptable to
the public, in order to protect their sport. They developed a code
of ethics, the idea of fair chase. Airborne hunting breaches this
code and is clearly offensive to the public. The airborne hunting
initiative was not a hunter versus non-hunter issue. Indeed, most
of the Steering Committee were hunters. He studied the printouts
that Mr. Bennett provided the committee and they proved not to be
urban versus rural, as was predicted before the initiative was
introduced, and they proved not to be native versus non-native, nor
were they region versus region. Rather, the general public,
including the Anchorage housewife, still has a notion that it has
a say in wildlife management. He thought this initiative was a
strong expression by the public and shouldn't be carelessly
dismantled.
One other thought he had, which Mr. Bennett covered, was on the
matter of disease or parasite related biological emergencies and
clearly that exception should be made. That was the intent of the
sponsors of the initiative.
Number 520
MR. BILL HAGAR, Alaska Wildlife Conservation Association, supported
SB 74 saying that there was a 40 percent decrease in the moose
population due to predation, including wolves and bears. He said
they are close to testing this law.
CHAIRMAN HALFORD announced that concluded the public hearing.
SENATOR TAYLOR moved to pass SB 74 and the $0 fiscal note from
committee with individual recommendations. There were no
objections and it was so ordered.
SENATOR TAYLOR added that this would just provide the Department
with an additional tool for those situations that the Department in
their expertise feels is necessary to utilize a more efficient
method of correcting a management problem.
CHAIRMAN HALFORD adjourned the meeting at 4:06 p.m.
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