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