HB 186-WOOD BISON  3:40:38 PM CO-CHAIR FEIGE announced that the next order of business would be HOUSE BILL NO. 186, "An Act relating to the authority of the commissioner of fish and game with regard to the importation or relocation of wood bison in the state." 3:41:45 PM DOUG VINCENT-LANG, Special Assistant, to Commissioner Cora Campbell; Acting Deputy Commissioner, Division of Wildlife and Subsistence, Alaska Department of Fish & Game (ADF&G), spoke from the following written statement [original punctuation provided]: My name is Doug Vincent-Lang. I am a Special Assistant to Commissioner Cora Campbell. One of my duties is to coordinate ESA policy for the state. I am also the acting Deputy Commissioner for Wildlife and Subsistence. As the state coordinator for ESA, I share many of Rep. Dick's concerns regarding the misuse of the ESA in Alaska. We are challenging several misapplications of this act in Alaska from polar bears to beluga whales to ice seals to Steller sea lions. So I have a healthy skepticism regarding this act and its misapplication in Alaska. That said, let me try to explain what it is we are trying to do in this case and how it differs from these other issues. In short, we are attempting to restore wood bison to select areas of Alaska in a manner that will not allow the application of the typical provisions of the ESA that the state has concerns with to occur. A little background on the ESA might be helpful to place this effort in perspective. The original ESA resulted in problems with convincing private landowners to aid in the recovery of listed species. In short, landowners were reluctant of allowing the translocations of species onto their lands over concerns that their lands would be tightly regulated through designations of critical habitat, section 7 consultations, and incidental take restrictions. This lead Congress to amend the act in 1982 to allow listed species to be designated as experimental populations, either as essential or non-essential. The amendment further specified that for non-essential experimental populations, · Critical habitat could not be specified · Section 7 consultations are not required on most lands · Special rules governing allowable take could be developed that are less restrictive than otherwise allowed. 3:43:43 PM MR. VINCENT-LANG continued, as follows [original punctuation provided]: So where are we with wood bison in Alaska. · We are working with the USFWS on the designation of wood bison as a non-essential experimental population. · We are also working on a special rule that specifies allowable incidental take. In this case we are working with the USFWS to allow incidental take associated with activities such as recreation (e.g., fishing, boating, trapping, hiking, camping, shooting activities, or hunting of other species), forestry, agriculture, oil and gas exploration and development and associated activities, construction and maintenance of roads or railroads, buildings, facilities, energy projects, pipelines and transmission lines of any kind, mining, mineral exploration, travel by any means including vehicles, watercraft, snowmachines or aircraft, tourism, and other activities that are in accordance with Federal, State, and local laws and regulations and specific authorizations. · We are also working with the USFWS to designate the geographic range where these rules would apply. We hope to have a draft rule developed in the next several weeks that could be reviewed by all interested parties. We have targeted 2012 as a desired release date, but are considering delaying this. One question that has come up is how legally defensible these rules are. We had DOL examine this question and found these rules are very defensible. Their vulnerabilities are associated with · Range · Overlap with wild stocks Neither of these applies in this case. 3:45:22 PM MR. VINCENT-LANG continued, as follows [original punctuation provided]: In closing, we simply ask that we be given the opportunity to develop the rule and let people decide for themselves whether the rule is adequate to protect their interests. We have said that we will not release wood bison into the wild until landowners, local people, state agencies, and others are comfortable with the rule and the release of these animals onto the landscape. 3:45:53 PM MR. VINCENT-LANG referred to questions raised during Representative Dick's constituent hearings. One question that arose about musk ox which Mr. Grasser answered correctly was musk ox had been released into the wild long before the Endangered Species Act (ESA) was enacted by the Congress. Thus, it wasn't necessary to designate the musk ox as a non-essential population or as a threatened or endangered species. 3:46:37 PM REPRESENTATIVE KAWASAKI inquired as to the process the Alaska Department of Fish & Game (ADF&G) would undergo prior to allowing any species into an area. MR. VINCENT-LANG responded that ADF&G has identified three areas of compatible habitat that the department feels the wood bison could be released into and survive in the wild. Additionally, he related that the department has undergone a public process to work with landowners of state, federal, or Native corporation land, to address any concerns. He reiterated that the ADF&G went through a very definitive process to identify concerns of public and how the department could best address the concerns in the special rule. Further, the department reviewed the impact of wood bison on wild animals in those areas to avoid affecting the natural flora and fauna. 3:47:56 PM MR. VINCENT-LANG reassured members that the ADF&G has advised residents that unless the department can satisfy all concerns the wood bison will not be released. He commented that the department would have preferred to release wood bison in Minto Flats. However, Doyon Limited requested the wood bison not be introduced into the Minto Flats area and that is the reason the department has moved to the Innoko area. In fact, Doyon, Limited suggested the Innoko region. He pointed out the ADF&G has held a series of public hearings and plans to meet with Innoko residents next week. He hoped to spend time this summer in the area to answer any questions local residents have about the re-introduction of wood bison in the area. 3:48:44 PM REPRESENTATIVE KAWASAKI asked what would happen to the 90 wood bison currently located in Portage in the event that the department exhausts its efforts to find an area, but fails to do so. MR. VINCENT-LANG related the department would work to control the population. He offered that the department would hold them indefinitely. He acknowledged that at some point in time the ADF&G will need to take measures to control the wood bison population since the area is limited. 3:49:27 PM REPRESENTATIVE KAWASAKI inquired as to whether the ADF&G has an opinion on HB 186 and if the bill delays the implementation of re-introduction to 2013. MR. VINCENT-LANG answered that HB 186 could delay re- introduction of the wood bison. He related a scenario in which consensus was reached and the department obtained a special rule from the U.S. Fish and Wildlife Service (USFWS) that could satisfy landowners and the administration. The necessity to come back to the legislature for approval would delay action until 2013, he said. He characterized this rule as somewhat redundant with ADF&G's commitment to people to resolve the issues they have with the potential release of wood bison. 3:50:38 PM REPRESENTATIVE MUNOZ asked whether the special rule he mentioned was contingent on the "10(j)" exemption the department is currently pursuing. MR. VINCENT-LANG explained that the ESA process is complex. Basically, the "10(j)" rule gives the state the ability to designate the population as experimental. Next, the federal agency would determine whether the re-introduction is essential or non-essential populations (NEP) to the recovery of the wood bison species. Once the determination was made through the "10(j)" process, a special rule could be developed to regulate the take of a non-essential population. He related that the special rule could allow take that would not normally be allowed if the species were listed as a threatened or endangered species under the ESA. In this instance, the department has worked to craft the language to allow takes of the NEP designated populations with the kinds of activities that could potentially occur in the landscape that would be confining to people, including recreation, livestock grazing, oil and gas exploration and development, mineral exploration and development, timber harvesting, transportation, and other legal activities conducted by state tribal, federal, state, and local laws and regulations and specific authorizations. 3:52:11 PM REPRESENTATIVE MUNOZ asked if all of that was established, whether the people of the region would have a personal use preference in hunting. MR. VINCENT-LANG responded that automatically the Native people would be allowed to hunt since an exemption currently exists in the ESA to allow take by qualified Natives and residents of Native villages. Once the wood bison population grew large enough it would become regulated by either the Federal Subsistence Board or the Alaska Board of Game, in which case a general hunting provision would be allowed. He recalled previous testimony by Mr. Grasser that identified the struggle with USFWS on that rule. The ADF&G supports inclusion of a general hunting provision in the rule and continues its efforts to negotiate inclusion. He recapped that immediately upon release, some hunting opportunities would be available to Alaska Natives, but the department hopes to have a general hunting provision once the wood bison reached a viable population. 3:53:27 PM CO-CHAIR SEATON inquired as to whether the non-essential experimental population (NEP) would happen if this is the only wood bison stock in the U.S. He asked whether the wood bison in Canada could be included as part of the consideration since the Canadian stock is part of the same genetic stock. MR. VINCENT-LANG answered yes. He stated that in essence, when working with USFWS, the department describes the population as an experimental population in Alaska and as non-essential to the overall recovery because there are thousands of wood bison in Canada. Thus, even if the re-introduction of wood bison in Alaska failed and they completely disappeared, it would not jeopardize the overall wood bison population. Therefore, the wood bison will be considered NEP, he said. Some people have asked whether someone could later petition to designate the population as a threatened or endangered population. He reported that the Department of Law reviewed the matter and determined that in every case the judge has upheld the NEP designations, except in instances in which a mix of the experimental with the wild population in the same range occurred. He reported that is not the case here. 3:55:10 PM CO-CHAIR FEIGE inquired as to what population level the wood bison herd would need to rise to in Alberta, Canada in order for them to be "de-listed." MR. VINCENT-LANG answered that currently the USFWS has noticed in the federal register the plan to downlist the U.S. species from endangered to a threatened species. In Canada, the wood bison is currently listed as threatened. The ADF&G believes the population should be completely "downlisted" and will submit comments to the USFWS to do so. He was unsure of the current number of the wood bison population in Canada and was unaware of any action to change its current endangered status. 3:56:14 PM REPRESENTATIVE GARDNER related her understanding that the "10(j)" rule would allow the department to designate the population as experimental. She asked whether the special rule would allow the taking of animals that are designated as NEP. MR. VINCENT-LANG answered yes. REPRESENTATIVE GARDNER asked how the wood bison status would impact mining and other activities. She further asked for clarification between the special rule and other resource impacts, which she understood as one of the sponsor's concerns. MR. VINCENT-LANG explained that when the Congress amended the ESA in 1982, it allowed for the designation of experimental populations to be further refined to essential or non-essential. In this instance, the ADF&G has concluded with the USFWS that the wood bison is a NEP. The federal act further allows for a special rule with respect to the taking of NEP species not otherwise allowed by the ESA. Further, taking has been broadly defined in the ESA to mean harass, harm, pursue, hunt, shoot, wound, capture, trap, collect, or attempt to engage in any such conduct. In this instance, when the Congress amended the act and allowed for a special rule, it considered that it was not likely landowners would agree to introduction of animals if the "take" provisions applied. Thus, the Congress allowed for a special rule for the NEP. When the ADF&G prepared its list, it asked the stakeholders to address any concerns over the "take" provisions with respect to releasing wood bison. The list included recreation, livestock grazing, oil and gas exploration and development, mineral exploration and development, timber harvesting, transportation, and other legal activities conducted by state tribal, federal, state, and local laws and regulations and specific authorizations. He offered his belief about the only kind of "take" not allowable would be intentional poaching of an animal, which would still be considered illegal. 3:58:53 PM REPRESENTATIVE GARDNER asked whether the Congressional provision in the ESA provides the ADF&G confidence that if the wood bison were released that there would be not be any federal change or impact not anticipated. MR. VINCENT-LANG offered his belief that the department is fairly confident from its legal review that the rules and regulations are defensible in court. He commented that the ADF&G would like to see the draft rule published and the final rule after it has undergone public comment prior to determining whether the rule adequately protects re-introduction of the wood bison and also protects Alaska's interests. 4:00:00 PM MR. VINCENT-LANG, in response to Representative P. Wilson, offered his belief that several of the wood bison rules have been challenged in the 9th Circuit Court of Appeals. He indicated that most commonly the experimental rules have pertained to wolves in the Lower 48. In those instances, problems occurred when wolves migrated off the NEP designated range and entered other states and were protected under the full ESA. The ADF&G has learned from that occurrence. It created a geographic range associated with the rule to ensure any wood bison that migrated would be covered by the NEP designation despite any migratory movement. 4:01:18 PM MR. VINCENT-LANG pointed out that wolves have moved from Alaska and have mixed with natural wolves from Canada. In those cases the judge has stopped the rules to allow time to determine which wolves were wild or NEP since the natural wolves protected by the ESA mingled with the NEP wolves. He reiterated that type of case would not apply with respect to the wood bison since the species would not be subject to mixing with bison from other areas. Additionally, in order to be able to challenge the court, a person must demonstrate that he/she has been harmed. 4:02:25 PM REPRESENTATIVE P. WILSON inquired as to whether wolves are predators of wood bison. MR. VINCENT-LANG acknowledged that some wolves will probably take down some bison, but he offered his view the wolves would not be able to eradicate the wood bison. He pointed out that wolves and wood bison coexist in Canada. 4:03:19 PM REPRESENTATIVE P. WILSON asked whether local residents would be able to hunt prior to the opening up hunts to the general public. MR. VINCENT-LANG answered that an Alaska Native exemption would apply immediately upon wood bison re-introduction into the landscape. However, once there is a harvestable surplus of animals, the Federal Subsistence Board and the Alaska Board of Game would regulate harvest. In both cases, the subsistence priority exists over general hunts. He said the ADF&G hopes to grow the herd to accommodate subsistence and general hunting provisions in the area. In further response to Representative P. Wilson, he answered that the decisions with respect to allocation of resources will be made by the Federal Subsistence Board and the Alaska Board of Game. The Federal Subsistence Board has an obligation to provide for subsistence needs for rural Alaskans and the Alaska Board of Game has a priority to provide a subsistence priority for all Alaskans. He reaffirmed that only after providing for subsistence would the rest of Alaskans have a general hunting provision. 4:05:52 PM KATHY WALKER-CHASE stated that she serves on the Grayling Anvik Holy Cross Shageluk (GASH) Fish & Game Advisory Committee. She further stated that she supports relocation of the bison. In further response to Co-Chair Feige, she clarified that GASH stands for Grayling Anvik Holy Cross Shageluk. She said she represents Holy Cross on the advisory committee. 4:06:46 PM REPRESENTATIVE DICK asked whether she had reviewed the video he posted on the wood bison. MS. WALKER-CHASE answered no. REPRESENTATIVE DICK offered his belief that if people in GASH viewed the video they would reconsider their position. He cautioned against possible irreversible long-term consequences with the re-introduction of wood bison. He suggested that she go to the internet to youtube.com and query wood bison Innoko. He offered to assist his constituents in achieving wood bison but the decision for re-introduction should be based on an informed decision and all the materials should be viewed. He further cautioned that the legislature deals with the federal government being very abusive to Alaskans and locking up the land. He related his fear that people will be locked up and the bison will be roaming free. He encouraged her to watch the video. 4:08:51 PM MIKE MILLER, Alaska Wildlife Conservation Center (AWCC), stated that he has been managing the wood bison for the state. He related that for the past 30 years he has managed plains bison. He recalled previous testimony given. He offered his belief that there is not any reason to take action on HB 186 since it would only place another layer of unnecessary involvement. He thought that the endangered species animal under the protection of the "10(j)" should be out in the wild procreating. He stated the wood bison would have the same protection as other animals, such as caribou or squirrels. He recalled that in 1960, Canada faced a similar situation with only 23 animals. He reported that Canada fenced an area, similar to the 200 acres in Alaska, and implemented the Canadian wood bison recovery program resulting in eight herds numbering over 800 animals in each herd. He stated that the people are enjoying the resource. He said that Canada viewed the opportunity to bring back a species from extinction. 4:11:19 PM MR. MILLER characterized his position at the center as frustrating, but rewarding. He related that over 200,000 legislators, members of the Congress, media, Native Alaskans and the general public come through the wildlife center every year. He said that the AWCC provides people with an educational opportunity. He pointed out environmentalist, hunters, and others have been working on the wood bison project together rather than fighting among themselves. 4:12:49 PM MR. MILLER offered his belief that HB 186 creates a new problem that does not make any sense. In 2008, he participated in the capture of 60 wood bison in Canada and brought them back to the AWCC in Alaska. He urged members not to re-hash the wood bison issue. He understood Representative Dick's concerns, but if the Native people in the villages want these animals released the ADF&G would still not release them unless there is agreement on the "10(j)" rule. He said the Native people should decide if the wood bison are re-introduced and not the legislature. He viewed HB 186 as creating another unnecessary hurdle to re- introducing the wood bison into the wild. 4:14:33 PM MR. MILLER pointed out the requirement for archeological findings to demonstrate the natural range of the wood bison, which became extinct in Alaska 90 years ago. He related prior disputes and concerns, including some were concerned that the bison were not wood bison, which was genetically proven. Some held unfounded fears that wood bison would trample eggs or displacing moose. He characterized the issues as unfounded and relentless, including the newest concern that re-introduction of wood bison would affect peat excavation. He listed donors to the AWCC that have provided feed and financial support for the project, including the Safari Club, the University of Alaska and the Wildlife Conservation Society, as well as the Defenders of Wildlife. He characterized the funding as diverse funding from many different user groups. MR. MILLER disagreed that the wood bison project is a "Trojan horse." He urged members to take into consideration that land would not be locked up and new covenants would not be put into place. He offered his belief that the project would be easily defensible, given his conversations with the USFWS, since agriculture and fencing do not exist in the proposed re- introduction area. He acknowledged that while any group could sue, many environmental groups have expressed their support for the wood bison project. 4:19:36 PM MR. MILLER said he has a different point of view because he works with the wood bison every day. He pointed to the success of the Canadian project and would like to see the wood bison project. He hoped that once the "10(j)" ruling is released that people will respect it since it could result in numerous people enjoying the wood bison. 4:21:01 PM REPRESENTATIVE P. WILSON noted that not everyone in Alaska, including herself has been aware of this project. She inquired as to whether the groups he mentioned benefit from the Delta bison herd. MR. MILLER responded that the Delta bison herd provides watchable wildlife opportunities and sport hunting permits. The areas where these wood bison were once found have native habitat. He recalled testimony by Native elders who recalled seeing wood bison in the wild as children. The wood bison in the Neslin herd in Canada were transplanted in mid-80s and have grown to over 1,000 animals. The herd has grown to the point that special permits are no longer needed and residents simply obtain over-the-counter licenses to hunt wood bison. He characterized the habitat for the wood bison project as the best on earth and it could result in sizable herds 100 years from now. He offered his view that wood bison are as natural to the state as moose. He said if moose needed to be re-introduced it would be fully supported by Alaskans. MR. MILLER urged members to quit thinking about all these hypothetical concerns. He recalled hearing concerns that the herd is getting too domesticated but a youtube.com video demonstrates otherwise. He acknowledged that this issue is emotional because the proposed re-introduction of wood bison is such a beautiful project and he hoped the Native people continue their push for the project. 4:28:03 PM CO-CHAIR FEIGE, after first determining no one else wished to testify, closed public testimony on HB 186. 4:28:31 PM REPRESENTATIVE GARDNER stated that she finds the issue difficult. She indicated she made a commitment that she would not resist moving this bill out of committee, but has been persuaded that this project is a good project. She indicated she would not support HB 186 if it comes to the floor for a vote. REPRESENTATIVE DICK apologized for being a source of frustration, but already this bill has accomplished something. He reiterated that the bill does not say bison cannot be moved but rather that the legislature must approve it. He affirmed that he did not want to create another layer of government. He predicted that if the re-introduction of wood bison happens that the biologists will study the animals. He acknowledged that the issue is an emotional one for many people. Ten years from now his constituents might get to hunt some wood bison, but they could also be litigants and that raises his real concern with the project. 4:31:37 PM REPRESENTATIVE DICK related the risk of a wolf taking down a wood bison is very small due to wind, but this time in his northern district is referred to as "crust time" because the wolves do not punch through the snow but the moose do and two wolves can take down a bull moose. He reported that Innoko is one of the areas where predator control is not allowed. REPRESENTATIVE DICK, with respect to the Delta bison, pointed out that in three decades the state has not resolved the conflict between the farmers and the hunters in Delta Junction. He pointed out, with respect to the wood bison interbreeding, that bison live approximately 200 miles away from the proposed re-introduction site. He offered his belief that if the wood bison can mingle with the plains bison there will be trouble with interbreeding in Alaska. REPRESENTATIVE DICK offered his belief that President Obama has attempted to violate the statehood act, which leads him to believe that agreements cannot be made with the federal government. 4:36:33 PM PAUL VERHAGEN, Staff, Representative Alan Dick, referred to a map in members' packets that shows another 3,000 square miles was just locked up in Cook Inlet with the designation of beluga critical habitat. He stated this is the same area where two new jack-up rigs are on their way into the Cook Inlet. He expressed concern that if the wood bison are re-introduced, there will be lawsuits and unintended consequences. He reiterated the best method for determining the issue of the wood bison project is through legislative approval. REPRESENTATIVE DICK pointed out that he trusts Doug Vincent- Lang, but it is not always possible to trust government officials. He recalled his view of when Governor Tony Knowles was governor and Frank Rue was appointed commissioner that "we were devastated." He expressed his preference that these decisions should not be made by the administration but by the legislature. He concluded it is not an issue of wood bison but whether the folks in Washington, D.C. can be trusted. He said, "I vote no on the folks in Washington." 4:39:51 PM CO-CHAIR SEATON REPRESENTATIVE moved to report HB 186 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 186 was reported from the House Resources Standing Committee.