Number 067 HB 443 - Fish & Wildlife Confidential Records WAYNE REGELIN, DEPUTY DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ALASKA DEPARTMENT OF FISH AND GAME (ADF&G), stated HB 443 addresses the confidentiality of radio frequencies and a few other types of information ADF&G feels should remain confidential. ADF&G has routinely radio collared many different animals for research and management purposes since the mid-1970s and this information has always remained confidential. He said at the request of ADF&G, the confidentiality requirement was put into regulation by the Board of Game in 1986 because tourist companies were wanting to use ADF&G's radio frequencies for flight seeing. In 1990, the legislature revised the confidentiality statutes throughout most departments. At that time, ADF&G asked the legislature to add an amendment to ensure the continued confidentiality of radio frequency information and the legislature did so. MR. REGELIN stated when that change was made, wording was added saying the department shall keep information confidential when the knowledge may be detrimental to the fish and wildlife population. ADF&G did not realize the wording was a problem until the department was sued in the summer of 1993 for refusing to release radio frequency information to an individual wishing to track radio collared wolves. ADF&G was required by a court order to release the information because the department could not prove that the information would be detrimental to the population. It might have been detrimental to the individual animals, but not to the population. He stressed it would be nearly impossible to ever prove a population detriment because only a few animals are collared at one time. He said even death to those few animals would not hurt the population. MR. REGELIN explained ADF&G is requesting, through HB 443, that those words be removed so ADF&G will not have to provide that proof. He said HB 443 will also add another section allowing the department to keep specific locations of animal capture sites for wildlife research or management confidential. The department currently has a request, under the Public Records Act, for all locations of traps and snares used in ground based wolf control operation south of Fairbanks. The request asks for the exact locations of where the department sets each trap. He stressed the department believes it is in the state's best interest and essential for good wildlife management to keep the radio frequencies and trap locations confidential. Number 112 MR. REGELIN said ADF&G feels if the department is required to release this information, it may compromise some of the department's studies because animals might be removed or displaced, altering their behavior. ADF&G feels the release of information might lead to the disturbance of sensitive locations such as den sites. ADF&G believes the information could be used to facilitate harassment of the department's research and management programs by individuals and organizations who oppose them. ADF&G feels the information could also lead to increased vulnerability of the animals and associated animals for unethical people to get the radio frequencies and use them for hunting. MR. REGELIN stated another change which ADF&G recommends is that words be added allowing the release of the information, if the requestor is under contract with the state to conduct research. This provision will allow the department to cooperate on projects with researchers, private consultants, etc., where the research is mutually beneficial to everyone involved. He pointed out that in all other states he is aware of, this kind of radio frequency information and specific locations are kept confidential. He added that federal agencies like the Fish and Wildlife Service and the National Park Service also keep this information confidential. MR. REGELIN said the individual who received ADF&G's radio frequencies under court order, also requested frequencies from the National Park Service but was denied because federal laws are more strict. He stated ADF&G is not saying that no other agency, organization, or individual should be allowed to conduct wildlife research on radio collared animals. He noted federal agencies, such as the National Park Service, routinely put on collars and often work cooperatively with ADF&G and in doing this, they do so under a permit from ADF&G. He explained consulting firms are also allowed to put their own radio collars on under a permit received from ADF&G. HB 443 will leave that decision up to the discretion of the commissioner in entering for cooperative agreement, if the agreement is in the best interest of the state. He stated in most cases it is in the best interest of the state to work with other groups and organizations to share costs, funding, and work together. ADF&G does that routinely with a wide number of people and universities throughout the country. He said ADF&G does so with almost anyone who has scientific credibility. Number 159 MR. REGELIN stated HB 443 will not change the department's obligation to provide information to the public about ongoing activities. ADF&G routinely provides summary information on almost all ongoing department activities and also provides great detail of the department's information when requested. For example, on the department's wolf control program, ADF&G has provided the Alaska Wildlife Alliance and other people, information on all of the costs, biological information, etc. He stressed what ADF&G has not given out is the exact locations of where every trap is set. The department has given out maps indicating the traps are within a certain zone, and informing them the exact locations will be given once the trapping season has ended. MR. REGELIN noted there had been discussions with several people in the House and Senate asking ADF&G to offer an amendment. He said the amendment will provide additional flexibility for the commissioner. On page 2, line 2, of HB 443 the amendment will insert "if the requestor has been authorized by the department to perform specific activities and the requestor agrees to use this information only for purposes as provided under the contractor agreement." He explained the reason for the amendment is ADF&G does not want to be, by law, not able to cooperate with someone, such as people making a wildlife film, where it would be to the state's advantage to produce a good wildlife film. This amendment will allow that to be done. Number 201 REPRESENTATIVE FINKELSTEIN said he is confused about HB 443 because there is a court order contained in each member's packet and the court decision stated the department was not required to give any information to the plaintiff organizations. He pointed out that one individual did get the information, but that individual was ordered not to release the information to any of the individuals and organizations who were the plaintiffs. He felt it is clear that the state succeeded, the current law has achieved the balance the state wanted and the court went even further and he explained the authority the state has. He thought the court order has given the department the power already and he did not understand what needs to be fixed. MR. REGELIN responded the standard of proof used by the judge was the department could not demonstrate a detriment to the fish or wildlife population. At ADF&G's request, the judge put in the confidential language. He said ADF&G remains concerned that a precedent has been set and the department will not be able to prove, if a flight seer wants to fly 100 planes a day over wildlife wearing radio collars, that it is detrimental to the population. MR. REGELIN added ADF&G currently has two requests from flight seers which the department has not acted on. He stressed the issue is broader than just the one individual who sued the department. ADF&G is concerned that a precedent has been set and if the department has to release the information, the next judge may not include the confidentiality clause. HB 443 will solve the department's problem. He stated if an individual is contracted with a group of people who the department feels are beneficial to cooperate with and work with, the department will try and work with that individual. Number 257 REPRESENTATIVE FINKELSTEIN clarified Mr. Regelin had said the court imposed a burden on the department to show detriment to the fish and wildlife population. He asked where that is indicated in the court order. MR. REGELIN said he listened to the judge and when making his decision, that was the standard. He thought the Department of Law would need to explain the court order. REPRESENTATIVE FINKELSTEIN felt there is no problem in interpreting the court order. He thought ADF&G probably has read the court order many times because it is the basis for interpreting the current law. REPRESENTATIVE HUDSON felt HB 443 is attempting to avoid future court determinations and to clearly stipulate what the department's needs are in law so as to preclude someone from going to a judge to make a determination. He said because there is a judge's decision outlining the parameters in the bill, it makes it easier to have it in the statutes. Number 395 DR. GORDON HABER, DENALI PARK, testified via teleconference and stated HB 443 was written by the state directly and is solely in response to an action he took. He clarified the state has given internal memos and other materials directed at him to committee members. He stated HB 443, even with the proposed amendment, will make it impossible for any valid scientific research to be conducted on radio collared animals except by another agency or under ADF&G contract. He noted that the person under contract will have to be someone the department feels comfortable with, meaning any project conducted will be under strict ADF&G control. DR. HABER pointed out that in June, a Superior Court judge listened to all ADF&G arguments and all of his, and did so on a level playing field. After hearing testimony, the judge awarded the ADF&G radio frequencies to him to allow him to conduct research, which the judge considered would contribute significantly to the issue of wolf control. He said in the order, the judge pointed out that the state had not challenged his credentials as a scientist and concluded that the state's arguments to the effect that this decision would set a precedent and open the flood gate for harm to the wildlife populations were unfounded. The judge determined the ADF&G commissioner already has adequate regulatory permitting authority to preclude that possibility. He pointed out there has been no indication yet of any onrush of people seeking the radio collar frequencies. DR. HABER said the judge made it very clear in his order that he or anybody else is forbidden to use the frequencies for anything but scientific research. He felt there is no additional protection for radio collared wildlife under HB 443 not already existing in present statute and the commissioner's existing regulatory permitting authority. Mr. Haber stressed the only effect HB 443 will have is to suppress the kind of scientific research he is conducting as an independent scientist, not under any ADF&G's direct control; the kind of independent research he felt will be welcomed by the legislature because the research ensures the broadest possible information base and serves as a check against biased, self-serving interpretations which might be presented by either side in a complex controversial issue of public policy. Number 353 DR. HABER commented that ADF&G has already argued that opponents to its wolf control programs do not have the data to support their arguments. He pointed out that existing statute allows opponents, through qualified scientists, to gather information independently and go to the Board of Game with the data to make their best arguments. Closing the opportunity for independent information to be collected will leave opponents of controversial programs, like wolf control, with only one alternative and that is a boycott. Mr. Haber said based on the research he has been doing in and near the current and recently proposed wolf control areas, with the aid of the frequencies, he has already been able to generate several major technical reports. DR. HABER noted that ADF&G has received several of his reports and will be receiving more. The reports are available to anyone who requests them. He said the reports represent over $100,000 of research he has conducted since April. He felt the information received from his research is a bargain for the state as none of the money used to conduct the research is state money. He stated the results he has collected thus far represent a different interpretation than what ADF&G has provided to Alaskans. For example, his research indicates the moose population in game management 20-A south of Fairbanks, is almost certainly past its most productive size presently, where maximum sustainable harvest for hunters could be derived. (Indiscernible) wolves as the state is trying to do now (indiscernible) will increase further through a range of densities where recruitment and sustainable yields will continue to decrease which is somewhat self-defeating since the objective in 20-A is to increase hunting opportunities. He gave other examples. Number 399 DR. HABER stated the material which ADF&G has given to committee members paints him as a wildlife greenie. He reminded committee members that the judge in his court order emphasized ADF&G did not challenge his scientific credentials. He explained he has a Ph.D and Masters Degree based on management oriented wolf/bear research which he has been doing for 29 years. He has several technical publications. He is a permanent resident of game management area 20-A where wolf control is being carried out. Local resident there strongly support his efforts. DR. HABER said the People magazine article clearly defines what he thinks about the current wolf control program, although it does not say much about his technical arguments. He pointed out that contrary to the picture which ADF&G is trying to paint, he does not oppose wolf control across the board which can be seen if his technical publications are read. He stated back in the 1970s when the western Arctic caribou herd crashed in Northwestern Alaska, he was one of the strongest supporters and defenders of wolf control in that case. DR. HABER stated some of his support has come from environmental organizations, but ADF&G has not mentioned he has also received grants from the opposite side. He has received grants in the past from the National Rifle Association and the Boone and Crockett Club. He noted he is currently a member of the National Rifle Association and a member of the Alaska Outdoor Council. Number 467 REPRESENTATIVE HUDSON stated it appears Mr. Haber's testimony is going to be lengthy and there will be additional questions. He suggested to Chairman Williams that HB 443 be moved to the bottom of the calendar and allow the committee to hear HJR 61 which will be fairly expeditious. REPRESENTATIVE JAMES asked if there will be enough time for Mr. Haber to complete his testimony. MR. HABER said he only wants to comment on the memos which ADF&G included in committee member's folders. He felt the memos are relevant because they have implied he has created major disturbances in the wolf population. MR. HABER continued in regard to the memo from Mr. Regelin to Mr. Kelleyhouse and the memo from Mr. Boertje to Mr. Regelin, it is clear to him that the department is attempting to imply that having been forced to release the radio collar frequencies, there has been disruption to the wolf populations where the radio collared wolves are located. He stressed that is untrue. He said he has conducted two major surveys in that area since the survey Mr. Boertje is referring to in his January 24 memo and has not seen what is described in that memo. Mr. Haber, referring to a photograph which he took of one of the radio collared packs, which was published in the Fairbanks Daily News and is in committee member's folders, asked committee members to look at the photograph and determine if there is even the slightest hint those wolves in any manner were responding to the aircraft. He gave other examples of photographs taken which do not indicate any disturbance. Number 537 MR. HABER stated since he has received the frequencies from the state, he has been monitoring 21 radio collared wolf packs. Upon thinking about how many of the wolves have reacted to his airplane in any kind of significant way, he can only recall about six cases where wolves responded. He added the response is usually very brief. In four of those six cases, the response was usually after the department had flown over. He stressed if there is any evidence of disturbance, the overwhelming evidence indicates that the department is disturbing the wolves. He said there really is no evidence of widespread disturbances as ADF&G is trying to imply. Mr. Haber commented in the memo from Mr. Boertje to Mr. Regelin, in regard to wolves being afraid of helicopters, the last survey he flew was two months prior to the mid-January survey. MR. HABER concluded that by only seeing the People magazine article, and being denied the opportunity to read the other technical publications he has written, committee members are being presented a slanted, inaccurate picture as to Mr. Haber's effect on the wolves. He urged committee members to not pass HB 443. CHAIRMAN WILLIAMS announced HB 443 will be held. He said it is his understanding that the department is trying to work with Mr. Haber to get his questions and concerns taken care of. He told committee members they will take up HB 443 again if there is time remaining after the next bill is heard. TAPE 94-42, SIDE A Number 000 HB 443 - Fish & Wildlife Confidential Records CHAIRMAN WILLIAMS stated he would like to amend HB 443 and get suggestions from committee members. REPRESENTATIVE JAMES made a MOTION to AMEND HB 443 on page 1, line 14: delete the word "or" and on page 2, line 2, insert ", or if the requestor has been authorized by the department to perform specific activities, and the requestor agrees to use the information only for purposes as provided under contract or agreement." Number 020 REPRESENTATIVE FINKELSTEIN said he cannot determine the relationship of the amendment to the concerns being expressed by Dr. Haber. DR. HABER stated there is a problem because the amendment still says that research will not happen if the department decides not to give him a contract. He pointed out that he made a request for the radio collar frequencies before he went to court, laid out a research plan, and wrote a letter to the ADF&G commissioner several months before and he was flatly denied. He felt the amendment will still leave it under the control of the department, precluding independent research. Number 040 MR. REGELIN stated ADF&G has some of the best experts in the world on collecting biological data on wolf populations and the department stands by what has been done and what has been published. He said ADF&G did not challenge Mr. Haber's credibility in court because the department did not feel it was pertinent. He pointed out that for decades, standard scientists have used the number and quality of peer review publications in scientific journals to ascertain a scientists credibility. He commented an examination of the publications record of Mr. Haber will show he has not published in any peer review journals. MR. REGELIN stated Mr. Haber has an impressive list of titles but close examination shows that his publications are published by the Xerox machines of extreme animal rights groups. He agreed the amendment will not solve the concerns and problem which Mr. Haber has because the department will not issue him a permit if they are not required to. He said ADF&G wants to work with people they have confidence in and ensure the people can distinguish between scientific fact and personal opinion. Number 068 REPRESENTATIVE FINKELSTEIN asked if there is any evidence indicating that any of the information Dr. Haber collected has been released to anyone the court order said it should not go to. MR. REGELIN responded none of the information has been released. He stated HB 443 is much broader than what is required for one person. HB 443 will keep the department from having to provide the exact locations of traps and snare sets to people during the trapping operation and providing information in future court orders, making it clear that the information is confidential and not to be used for flight seeing, unethical guides, etc. REPRESENTATIVE FINKELSTEIN stressed nothing in the court order precludes ADF&G from keeping the information out of people's hands. He felt there is no issue. MR. REGELIN stated ADF&G's concern is that a precedent has been set and a certain standard has to be met. The court order says ADF&G can keep the information confidential but the next judge can change that order. ADF&G wants to have a policy established like every other state has and like all the federal agencies have to keep this type of information confidential. He stressed ADF&G feels the information needs to remain confidential for the best interest of the state. When ADF&G feels it is in the best interest of the state to release the information, they will do so. REPRESENTATIVE BUNDE agreed. He said the more people who have the information, the potential for the information no longer being confidential goes up. Number 075 CHAIRMAN WILLIAMS asked if there were any objections to the motion. REPRESENTATIVE FINKELSTEIN OBJECTED. REPRESENTATIVE FINKELSTEIN made a MOTION to AMEND the AMENDMENT, on page 2, line 2, inserting after the word "activities", the words "or is conducting scientific research". He felt the amendment only addresses areas where someone is working on the side of the department. The amendment does not change what is already proposed in HB 443. He said whether or not a person is conducting valid scientific research is the issue. He pointed out the requestor will still have to agree in writing to whatever terms the department requires about the information. CHAIRMAN WILLIAMS asked if there were any objections to the motion. REPRESENTATIVE HUDSON OBJECTED. He clarified the proposed amendment to the amendment will read, ", or if the requestor has been authorized by the department to perform specific activities or to conduct scientific research, and the requestor..." REPRESENTATIVE FINKELSTEIN stated he wanted the amendment to the amendment to read "specific activities or is conducting scientific research, and the requestor..." He pointed out HB 443 already covers situations where requestors are doing research in agreement with the department. The issue is someone who does not agree with the department but is still an entity in the state conducting valid scientific research. REPRESENTATIVE HUDSON clarified that the maker of the amendment to the amendment is not precluding the conducting of scientific research from the need to be authorized by the department under contract or agreement. REPRESENTATIVE FINKELSTEIN said he is because that is the issue being discussed. The department decides they do not agree with a requestors policies so they do not want to authorize that particular research, but the department can make the decision whether or not it is valid scientific research. REPRESENTATIVE HUDSON pointed out that specific activities can include scientific research or any number of other things. REPRESENTATIVE FINKELSTEIN clarified that Representative Hudson's suggestion is to change the words to "or to conducting scientific research" and then it would be authorized by the department. REPRESENTATIVE HUDSON clarified the amendment to the amendment will read, "perform specific activities, or to the conduct of scientific research and the requestor agrees to use..." He felt that amplifies scientific research as a part of the provision but it still indicates the research will have to be authorized by the department. REPRESENTATIVE FINKELSTEIN said the language is becoming very confusing. He stressed the issue he is trying to address is somebody who the department does not want to authorize because that person has a different viewpoint. He felt the state should not be precluding people just because they do not have the same viewpoint as the department. CHAIRMAN WILLIAMS announced he will hold HB 443 until a later date. REPRESENTATIVE FINKELSTEIN WITHDREW his MOTION. ANNOUNCEMENTS CHAIRMAN WILLIAMS announced the committee will meet on Monday, March 28 at 8:15 a.m. to hear HB 286 and HB 436. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Williams adjourned the meeting at 10:12 a.m.