HOUSE STATE AFFAIRS STANDING COMMITTEE February 24, 1998 8:07 a.m. MEMBERS PRESENT Representative Jeannette James, Chair Representative Ivan Ivan, Vice Chairman Representative Ethan Berkowitz Representative Fred Dyson Representative Kim Elton Representative Mark Hodgins Representative Al Vezey MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 275(STA) "An Act specifying time periods for making, soliciting, or accepting campaign contributions to candidates for state office; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 168 "An Act relating to use of traditional means of access to assist in taking game or fish and to traditional means of access for traditional outdoor activities on land and water set aside for fish and game purposes; and providing for an effective date." - MOVED CSHB 168(RES) OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: SB 275 SHORT TITLE: FUND RAISING: GOV; LT. GOV; & CANDIDATES SPONSOR(S): SENATOR(S) MILLER, Pearce Jrn-Date Jrn-Page Action 02/04/98 2393 (S) READ THE FIRST TIME - REFERRAL(S) 02/04/98 2393 (S) STATE AFFAIRS 02/10/98 (S) STA AT 3:30 PM BELTZ ROOM 211 02/10/98 (S) MINUTE(STA) 02/17/98 (S) MINUTE(STA) 02/18/98 (S) MINUTE(RLS) 02/18/98 2561 (S) STA RPT CS 3DP NEW TITLE 02/18/98 2561 (S) DP: GREEN, MILLER, WARD 02/18/98 2561 (S) ZERO FISCAL NOTE TO SB & CS (ADM) 02/19/98 2575 (S) RULES TO CALENDAR 2/19/98 02/19/98 2578 (S) READ THE SECOND TIME 02/19/98 2578 (S) STA CS ADOPTED UNAN CONSENT 02/19/98 2579 (S) ADVANCED TO THIRD READING UNAN CONSENT 02/19/98 2579 (S) READ THE THIRD TIME CSSB 275(STA) 02/19/98 2579 (S) PASSED Y18 N- E2 02/19/98 2579 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 02/19/98 2579 (S) ELLIS NOTICE OF RECONSIDERATION 02/20/98 2597 (S) RECONSIDERATION NOT TAKEN UP 02/20/98 2598 (S) TRANSMITTED TO (H) 02/20/98 2389 (H) READ THE FIRST TIME - REFERRAL(S) 02/20/98 2389 (H) STATE AFFAIRS 02/20/98 (H) MINUTE(L&C) 02/24/98 (H) STA AT 8:00 AM CAPITOL 102 BILL: HB 168 SHORT TITLE: TRADITIONAL ACCESS FOR TRADITIONAL ACTIVI SPONSOR(S): REPRESENTATIVES(S) MASEK Jrn-Date Jrn-Page Action 03/05/97 543 (H) READ THE FIRST TIME - REFERRAL(S) 03/05/97 543 (H) RESOURCES, STATE AFFAIRS 02/05/98 (H) RES AT 1:00 PM CAPITOL 124 02/05/98 (H) MINUTE(RES) 02/06/98 2232 (H) RES RPT CS(RES) 3DP 2DNP 2NR 02/06/98 2232 (H) DP: MASEK, OGAN, DYSON; DNP: JOULE 02/06/98 2232 (H) NICHOLIA; NR: HUDSON, GREEN 02/06/98 2233 (H) ZERO FISCAL NOTE (F&G) 02/06/98 2233 (H) REFERRED TO STA 02/19/98 (H) STA AT 9:05 AM CAPITOL 102 02/19/98 (H) MINUTE(L&C) 02/24/98 (H) STA AT 8:00 AM CAPITOL 102 WITNESS REGISTER PORTIA PARKER, Legislative Assistant to Senator Mike Miller Alaska State Legislature Capitol Building, Room 107 Juneau, Alaska 99801 Telephone: (907) 465-4711 POSITION STATEMENT: Presented CSSB 275(STA). BROOKE MILES, Administrator Juneau Branch Office Alaska Public Offices Commission Department of Administration P.O. Box 110222 Juneau, Alaska 99811-0222 Telephone: (907) 465-4865 POSITION STATEMENT: Answered questions on CSSB 275(STA). WAYNE ROSS Ross for Governor P.O. Box 101522 Anchorage, Alaska 99510 Telephone: (907) 276-5307 POSITION STATEMENT: Testified against CSSB 275(STA), suggested change in effective date. AL J. TURINSKY, JR. P.O. Box 789 Glennallen, Alaska 99588 Telephone: (907) 822-5060 POSITION STATEMENT: Testified against CSSB 275(STA). WAYNE REGELIN, Director Division of Wildlife Conservation Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Telephone: (907) 465-4190 POSITION STATEMENT: Answered questions regarding HB 168. ART IVANOFF Maniilaq Association Box 256 Kotzebue, Alaska 99752 Telephone: (907) 442-3311 POSITION STATEMENT: Testified against HB 168. LARRY HOLMES, Chairman Board of Game P.O. Box 454 Girdwood, Alaska 99587 Telephone: (907) 783-2188 POSITION STATEMENT: Testified against HB 168. JEFF PARKER, Member of Alaska Sport Fishing Association Vice President of the State Council of Trout Unlimited 500 L Street Anchorage, Alaska 99502 Telephone: (907) 272-6696 POSITION STATEMENT: Provided information on HB 168. PATRICK WRIGHT, Chair Anchorage Fish and Game Advisory Committee P.O. Box 90386 Anchorage, Alaska 99509 Telephone: (907) 270-1340 POSITION STATEMENT: Testified against HB 168. EDWARD GRASSER, Legislative Assistant to Representative Beverly Masek Alaska State Legislature Capitol Building, Room 432 Juneau, Alaska 99801 Telephone: (907) 465-2679 POSITION STATEMENT: Testified on behalf or Representative Masek, sponsor of HB 168. LARRY HOLMES, Chairman Board of Game Department of Fish and Game P.O. Box 454 Girdwood, Alaska 99587 Telephone: (907) 783-2188 POSITION STATEMENT: Testified against HB 168. ACTION NARRATIVE TAPE 98-23, SIDE A Number 0001 CHAIR JEANNETTE JAMES called the House State Affairs Standing Committee meeting to order at 8:07 p.m. Members present at the call to order were Representatives James, Dyson, Elton and Hodgins. Representatives Ivan, Berkowitz and Vezey arrived at 8:08 a.m., approximately 8:09 a.m., and 8:12 a.m. respectively. CSSB 275(STA) - FUND RAISING: GOV; LT. GOV; & CANDIDATES Number 0021 CHAIR JAMES announced the committee's first order of business was CSSB 275(STA), "An Act specifying time periods for making, soliciting, or accepting campaign contributions to candidates for state office; and providing for an effective date." Number 0041 PORTIA PARKER, Legislative Assistant to Senator Mike Miller, came forward to present CSSB 275(STA). She stated, as the committee was probably aware from the discussions on other legislation pending before the committee, that the bill would not be new. MS. PARKER stated CSSB 275(STA) would change AS 15.13.072 and AS 15.13.074 to require the same campaign fund-raising rules for soliciting contributions and accepting contributions to all those seeking state office. Everyone seeking state office would be under the same campaign financing rules. She said under current law that is not the case; it does not apply to candidates for governor and lieutenant governor, and does apply to all other candidates for the legislature as well as incumbent legislators running for state office. Ms. Parker noted several changes from current law that would affect candidates as well as incumbents, and she stated everyone would have the same financing restrictions for regular and special sessions. Both incumbent office holders, if they filed for office, and candidates who were not incumbents, would be restricted from fund-raising during regular and special sessions. Ms. Parker said that in order to avoid the problem of the summer special session, or one falling too close to an election, an exemption was inserted for the 90 days immediately preceding a election for which that person was a candidate. She mentioned the special election in April during the middle of the session several years ago, and indicated this exemption would get rid of any associated problems. She said candidates for that special election would be able to fund-raise during the session for the 90 days immediately preceding the special election. Number 0248 CHAIR JAMES stated she supports this idea because it is an issue of fairness, however what she sees "happening is the same thing that legislative candidates have to do is crunched into a short period of time," when the focus is going to be on fund-raising instead of campaigning, noting, to her, they are two different issues. She suggested opening up the off-election year to avoid this difficulty, using the analogy of "putting people into a box," and she asked if this idea had been considered. MS. PARKER replied the Senate had not addressed it in discussions or during the floor debate on SB 275. She said she is not sure if there would be any opposition to that idea, or why that decision was made during the bill's original passage two years ago, noting she had not been there during that time. Number 0347 CHAIR JAMES stated Ms. Parker understood her reasoning was that they were "closing the box down" almost to an unreasonable amount of time, and she mentioned incumbent legislators were restricted from fund-raising during the session. REPRESENTATIVE FRED DYSON asked what the impact on the proposed legislation would be if the American Civil Liberties Union's (ACLU) lawsuit to overturn the state's present campaign financing law was successful. MS. PARKER stated she was not sure because the changes made here contained some of the restrictions, referring to the restriction on legislators and candidates, which were part of that challenge. CHAIR JAMES stated, "If I might try. If we have a law, it's dated a certain date and there's a lawsuit to overturn that law, it would appear to me that that date of that law would be overturned, if subsequent another law that did the same thing would be happening, I would think, unless they're specific in language and exactly the same. Then I think that the second one would prevail, because ... it's different than the first one." Chair James said that would be her understanding, noting she was not an attorney. Number 0483 REPRESENTATIVE DYSON said he thought if that lawsuit was successful, it would solve part of the problems this law is trying to solve. In another question, he referred to Section 3 of the bill, noting it said the Act would take effect immediately and asked what that meant. MS. PARKER answered that it would take effect immediately after, either the Governor signed the bill or let it become law without his signature; or if vetoed then overridden, immediately after the veto was overridden. REPRESENTATIVE DYSON stated he was a bit persuaded by the letter the committee had received from Mr. Ross [LATER WITNESS] which said this somewhat changes "the deal" after he got into it. Representative Dyson said at least his preliminary opinion is that he would probably move to amend the bill to make it effective after the end of the session, so that Mr. Ross could continue to campaign under the deal which was in place when he signed up. Representative Dyson noted this seemed fair, although the whole thing was problematic, stating, "I mean what we have now and what you all are trying to do." Number 1127 REPRESENTATIVE KIM ELTON stated he had two questions. First he wanted to make sure the provision on page 1, line 9, quoting "you can solicit and accept campaign contributions during the 90 days immediately preceding an election," essentially meant contributions could be solicited and accepted if there was a special session anytime after the end of May. MS. PARKER stated that was correct, everyone would be able to. REPRESENTATIVE ELTON, in his second question, gave a hypothetical situation, "Last year we had the mayor's race (in Juneau). Under the provisions of this bill, or the rewrite of this bill, this now allows me to solicit campaign contributions during the session if I'm making a race for mayor, is that correct, because nine months preceding I can begin raising money for the mayor's race ...." MS. PARKER responded it would be 90 days. REPRESENTATIVE ELTON replied he thought it was nine months for a municipal race, and indicated he thought it was state law, not municipal code, that would allow him to begin raising money nine months prior to the mayor's race. MS. PARKER responded, "(Indisc.) be able to answer that question better than I can." Number 0712 BROOKE MILES, Administrator, Juneau Branch Office, Alaska Public Offices Commission, Department of Administration, stated Representative Elton was correct; a municipal candidate may begin to raise funds under the current campaign disclosure law nine months before the date of the election. She stated under current law, a seated legislator was not permitted to accept campaign contributions during the legislative or special session, regardless of the race in which he or she was running. Under the proposed changes, a seated legislator would be able to accept campaign contributions for municipal office during the legislature's regular or special session. Number 0760 REPRESENTATIVE ELTON stated, "This opens the door a lot wider." He noted the Anchorage municipal races now being conducted in April, and he said this would allow any legislator to file for borough assembly or mayor in the Municipality of Anchorage, and collect campaign contributions while serving as a seated legislator. Representative Elton gave another hypothetical situation: He is running for mayor of the Municipality of Anchorage and raises money during that campaign. He's allowed to keep $5,000 in a campaign account if he's unsuccessful, and he asked if he could then use that $5,000 in a race for state Senate or state House. MS. MILES responded she believed the commission staff has tried to visualize that scenario under current law and it appears unclear. At this point, her answer would be "probably yes." REPRESENTATIVE ELTON commented he thought this bill started out to accomplish one thing, and was creating a "bubble" in another area. He said, "That bubble bothers me because if - if we're operating under the premise that you shouldn't collect money while you're seated in session, I mean that should apply not to just (indisc.) collecting for state office but it should apply to a -- especially if you're a legislator and I'm soliciting money for a run at mayor, ... somebody is gonna think, 'Well, I give it to him because he's going to be mayor, or I give it to him because he's still going to be in the legislature.' And I think that creates a problem that we ... now do not have and that bothers me." He noted he did not have language and said legal would probably have to consider that issue. Number 0883 REPRESENTATIVE DYSON gave the scenario of someone running for mayor who raised a bunch of money and decided to switch. Representative Dyson asked if money that was raised for a mayoral race could be applied to a different race if the candidate decided to drop out. MS. MILES responded $5,000 of that money could be retained to run for future office. REPRESENTATIVE DYSON stated, in follow-up to Representative Elton's question, "The person who wants to make a contribution, and also wants a favorable vote, you know, I think we're back in the same sort of thing. We don't want the ... fact or the appearance of contributions influencing votes -- I suspect is the motivation we're ..." CHAIR JAMES stated on that point, she just had to say this whole issue of campaign finance reform revolted her. She noted the ethics, the open meetings, and the way they did everything because they didn't want anybody to think a certain way. She said she felt the solution was full disclosure. She stated, "Fact is, if the problem in this bill is for fairness, which I believe that is what it's striving for is fairness, because certainly the system we have currently is not fair, then the thing to do would be take away the unfairness and that is to - to go up instead of going down and making restrictions. Quite frankly, I could solve the problem very simply, to say that anyone who is running for governor or lieutenant governor has no restrictions, and we solve the whole problem in one (indisc.)." She recommended a regular, weekly disclosure of all funds and so forth. She said to let people decide with their vote if they didn't like what someone was doing, noting that seemed the fair way to do it. Number 1052 REPRESENTATIVE ETHAN BERKOWITZ stated he agreed completely and had asked for an amendment to do exactly that, to switch it around so that it was opened up entirely, but it had not arrived. He referred to Mr. Ross's concerns and asked for Ms. Parker's response. MS. PARKER stated she understood Mr. Ross's concerns, but it was a policy decision and she did not really have a personal opinion. She said that Senator Miller has talked with Mr. Ross and understands Mr. Ross's concerns, but feels it has to be fair for everyone. She stated she thought the sponsor might have a problem with opening the bill up for only the governor and lieutenant governor races. If the legislature wanted to open it up for anyone running for state office, and have weekly reporting, she would have to discuss that possibility with Senator Miller. REPRESENTATIVE BERKOWITZ pointed out that there was a difference between a House or Senate race, which are for relatively confined areas with relatively limited budgets, in comparison to a statewide race. He noted that just the logistics were quite different, mentioning the necessity of flying places and setting up organizations. He said a candidate would need the access money could provide. Number 1173 REPRESENTATIVE DYSON commented Chair James and Representative Berkowitz would be greatly comforted to know that the "paragon of Alaskan campaign ethics," Bill McKenkie (ph) agreed with them. Representative Dyson said Mr. McKenkie's (ph) exact words were, "The election process in America is so precious, we are to do almost nothing to mess with it, and the only thing we need to do is have everything (indisc.) the daylight, as in full disclosure." Number 1243 WAYNE ROSS testified via teleconference from Anchorage. He stated he was a "Republican National Committee man" and a candidate for governor of Alaska. Mr. Ross stated the legislature passed the "so-called campaign reform laws" a year or two ago and they had studied those laws very carefully before he decided to run for governor. He said those laws make it very difficult for a person who is not a politician, and not rich, to raise sufficient money to get the message out statewide. Mr. Ross stated, "Nonetheless, as a result of studying those, I felt that a viable campaign ... could be made, and we've attempted to play by the rules that were in effect when we made that decision and we've made commitments after becoming a candidate. Now if you run for statewide office you have to set up organizations in many areas of the state. ... We've made commitments in most of the major areas of the state, we have established organizations that are in the process of raising funds that have set up events to raise funds, we have made travel commitments. I have a finance and campaign chairman to get those things running, and to keep them running, we, of course, need to raise funds." MR. ROSS stated the main purpose of raising funds was to get the message to the people of the state. He noted they presently have fund-raising letters out and he commented that the legislature was entirely within its rights and duties to determine the campaign laws, but he felt changing the laws mid-campaign was "pretty outrageous." He noted the sponsor statement said, "This change will help level the playing field among candidates and will make the system more fair and equitable for all candidates seeking public office in Alaska." Mr. Ross stated it is not more fair and equitable for all candidates if the change takes effect immediately. Number 1380 MR. ROSS noted there were four major candidates currently running for governor: current-Governor Knowles, Mr. Lindauer, Senator Robin Taylor, and himself. He commented on Governor Knowles' possession of funds put together before the first campaign reform laws and the Governor's public exposure. He referred to Mr. Lindauer who, Mr. Ross said, has indicated he is using personal funds to run his campaign and is not fund-raising. Mr. Ross referred to Senator Taylor, who was aware of the rules which did not allow him to raise funds "till he got out of the legislature" when he decided to run, but who decided to run while retaining his Senate seat and who, Mr. Ross said, has made the most of his seat by getting public exposure. Mr. Ross then referred to himself, stating he was not a rich man; he said he is out raising funds to attempt to get his message across and he is the person who would be adversely affected by the immediate effect of this bill. He would have to cancel many planned events, and, with fund-raising letters out, was he supposed to send all the money back which came before the legislature got out of session? He said he has contributors who have committed to sending him small amounts each month. Is he supposed to send those contributions back? He asked how he was supposed to fulfill the financial commitments he has already made when, in effect, the legislature shuts them down on fund-raising. He said he believes this bill was directed principally at his campaign because "certain people saw it catching fire." Number 1498 MR. ROSS commented that SB 275 was a "rich man's bill," which only allowed those candidates who have money themselves and do not have to fund-raise, to continue to run a campaign. He stated he believes it is very unfair and that the "good old boy network," or "good old boy and good old girl network," was at work here. He strongly urged that, if this bill was passed, the effective date be changed to next year. Number 1542 AL J. TURINSKY, JR. testified next via teleconference from Glennallen. Due to teleconference difficulties, Mr. Turinsky's full testimony was not received and the portion recorded was almost inaudible. The Glennallen Legislative Information Office faxed Mr. Turinsky's written statement to the committee. Mr. Turinsky's testimony read: It is my understanding that the stated intention of SB 275 is to level the playing field in races for the Governor's and Lt. Governor's office and to bring the APOC rules for these races in line with the current rules for house and senate races. This bill fails to do that. A gubernatorial race is not the same ball game as a house or senate race. In a statewide race there are many times the number of people a candidate has to reach. The geographic area to be covered is enormous. When these factors alone are considered, rules are not being made comparable with house and senate race rules, they are reducing statewide races to a highschool student counsel race. The restrictions placed on candidates for statewide office under the new APOC rules have already seriously hampered the ability of candidates to get their message out. We live in the real world. And in the real world it costs more money to run a statewide race than it does to run a house or senate race. And it takes more time to raise that money. The legislature recognized this for one brief moment when it allowed a candidate to make a personal loan to his or her own campaign. There is one amount for house candidates, a larger amount for senate candidates, and an even larger amount for statewide office candidates. The rule proposed by this bill is not consistent with the existing personal loan rule. The people of Alaska have a right to make an INFORMED decision about who their vote should go to. We can't do that if candidates can't inform us of their position on important issues. This bill says the offices of the Governor and Lt. Governor aren't very important. This bill says the voters of Alaska don't need to know very much about the candidates for Governor and Lt. Governor. And this bill is nothing more than an economic infringement on the right to free speech. SB 275 passed the Senate by a unanimous vote. What is wrong with this picture? You can't put 20 senators in a room and get them to agree on the color of sugar. The only conclusion I can come to is that deals were made for political expedience. Madame chairman and members of this committee, I don't like deals being made with my vote. So I urge each and every one of you to vote against this bill. Thank you for your time. CHAIR JAMES concluded the public hearing on CSSB 275(STA) for that meeting, noting Representative Berkowitz had an amendment. Number 1667 REPRESENTATIVE BERKOWITZ moved Amendment 1. He said he did it somewhat apologetically because he had not had a chance to examine the amendment completely, but his request had been to craft language which opened up the process rather than constricted it, limited to the governor and lieutenant governor. Number 1697 CHAIR JAMES stated the amendment was before the committee. She said she had been working with the sponsor, and he would like to have the committee hold the bill until Thursday (February 26, 1998). Chair James stated she would like to hold it over with this amendment and see what other arrangements they could make. Number 1705 REPRESENTATIVE HODGINS made an objection to Amendment 1 for the purpose of keeping it before the committee. Number 1717 CHAIR JAMES stated the committee would hold CSSB 275(STA) with the amendment over until Thursday's calendar. HB 168 - TRADITIONAL ACCESS FOR TRADITIONAL ACTIVITIES Number 1721 CHAIR JAMES announced the next order of business would be HB 168, "An Act relating to use of traditional means of access to assist in taking game or fish and to traditional means of access for traditional outdoor activities on land and water set aside for fish and game purposes; and providing for an effective date." She informed the committee that at the last hearing on the measure she closed the public hearing on the bill with an exception of Wayne Regelin from the Department of Fish and Game. She explained that there are a couple of other people who wish to testify, Larry Holmes and Jeff Parker, and it is important to hear their testimony. Number 1777 WAYNE REGELIN, Director, Division of Wildlife Conservation, Department of Fish and Game, came before the committee to testify on HB 168. He informed the committee that the bill would limit the ability of the Board of Game to establish control use areas in order to restrict means of access (indisc.) hunter transportation for only the purposes of hunting. Control use areas are a valuable tool of the Board of Game. The board has used this tool for years to provide a diversity of hunting experiences, to protect wildlife habitat and to reduce hunter conflicts. Control use areas are used to segregate hunters by time periods so that hunters walking into areas don't have to compete with off-road vehicle (ORV) hunters and hunters using ORVs don't have to compete with hunters using aircraft for access. Currently in Alaska there are 26 control use areas. The first was established in 1971, and over half of them were established before 1979, and only 9 have been established since the 1990s. Mr. Regelin explained they are used in a variety of ways. On the Kenai Peninsula there are control use areas where hunters can only use their ORVs for two days in the middle of the season so that they can use them to retrieve their game and haul it out. He pointed out that they can't use ORVs on the other days. These are things that have been asked for by the hunters and the Board of Game has provided for them. MR. REGELIN explained that a lot of the control use areas are used to restrict aircraft access. Eight of them do that, some for just moose hunting and some for all hunting. Mr. Regelin said it has been a tool that the board uses, but not often as there are only 26 of these areas. They have been used at the request of the hunters in local areas to provide a variety of hunting experiences and to allow the seasons to stay open longer. He said that the alternative to control use areas in many places is shorter seasons. The harvest in most areas are controlled by setting seasons and bag limits, but in certain areas where there is a tremendous amount of access, that access has been limited so that all the harvest doesn't occur the first weekend. MR. REGELIN stated he realized that the bill doesn't affect existing control use areas. He said he wanted to explain how they had been used by the board in the past because he thinks they have proven to be a very effective method of maximizing hunter opportunity and providing for this variety of experiences while reducing hunter conflict. Mr. Regelin said he thinks that HB 168 would really reduce the ability of the board to address hunter conflicts. One of the big jobs of the board is to make the difficult allocation decisions between user groups and to try to provide opportunity for all the different user groups without a lot of conflict. One of the main tools that they use is the control use area. Mr. Regelin informed the committee members that the control use areas apply to all lands in Alaska. They apply to state, private and federal lands. He said that decision is a supreme court decision called the Totemoff decision. It says, "All state fish and game regulations apply on private and federal lands as well as state lands." The seasons and bag limits on private lands are the same and so are access limitations for hunting. Number 1957 MR. REGELIN said that a lot of people testified that HB 168 would open up a lot of areas for hunting. He said that it won't open up any because it is not retroactive on the current control use areas, but it would put a restriction on the use of them in the future because if they're done for the purposes of helping to resolve conflicts between different user groups, then the legislature would have to step in and authorize these unless they were for less that two and a half months a year. He explained in populated areas near cities, the seasons are usually less than two and a half months each year. When you get into rural Alaska, a lot of times they are longer than that. Mr. Regelin informed the committee that control use areas are established using a very open public process. He said he has never known one to be established without the support of the local advisory committees. They are usually not controversial at all. Currently there are two that have been established within the five or six years that have become somewhat controversial. One of them is the restriction of air boats in Minto and in that area. He said that was supported by the advisory committees in Minto, Tanana and those areas. The board reached a compromise that part of the area is still open to air boats and part of it is not. Number 2043 MR. REGELIN informed the committee members that the other area that has had some controversy is the Noatak control use area near Kotzebue because it's a large area. The board reviews control use areas periodically to determine if they are still necessary and if they are still doing their job. MR. REGELIN said if the board did make an error, even with their open public process, the legislature has full authority to correct that if the board refused to on a case by case basis because a regulation can't be in conflict with the statute. He said if there is a problem, he would urge that it be corrected by the legislature rather than to take away a tool that has been valuable for the last 25 years. Number 2085 CHAIR JAMES asked Mr. Regelin to give her an example of where this law will interfere with the decision of access. MR. REGELIN said if the board wanted to restrict access along a river for aircraft in the northern part of the state where the seasons are long because there is a conflict with local users. He explained that the local users primarily hunt by boat and the non- local users fly in. The board may decide that they would like to restrict the corridor right along the river to use by aircraft and allow aircraft to go other places. And if the season was more than two and a half months per year, they would not be able to do that without coming back to the legislature. Number 2135 CHAIR JAMES said, "I don't think there's any problem with restricting users, but we use uses to get to users as far as access is concerned. It's kind of getting at it from the back door. If you don't want those outside people coming in there, you just don't let them fly in. So it's to restrict the aircraft from coming in even though it's a traditional thing that they've done because you don't want them there. Is that the issue?" MR. REGELIN stated that the department doesn't restrict any of this. CHAIR JAMES said, "I understand, but as a department I'm expecting you to speak for the Board of Game. You are part of the administration for them. They get a lot of their information from you." MR. REGELIN said he agrees. He said he has watched the board try to work with a system that is essentially broken. They don't have good ways to regulate uses and users and that type of thing anymore because of the conflicting laws that exists. It is one way that is still a legal way for them to try to provide various types of opportunity, to try to provide a greater opportunity for local residents without cutting out all the residents of the state of Alaska. Number 2199 CHAIR JAMES asked if that is in relationship to subsistence or just local users. MR. REGELIN said the reason it is currently such a mess is because of the way the subsistence laws are structured. REPRESENTATIVE DYSON asked if accommodations are made for handicapped people to be able to use motorized transportation in a non-motorized area. MR. REGELIN explained that has not been done, but it has been requested a few times by handicapped users. There are 26 of these small areas and handicapped users have the rest of the state. The board has always felt that they have lots of opportunities. REPRESENTATIVE DYSON said he was slightly startled to see ballooning mentioned amongst the traditional uses. He asked Mr. Regelin if he knows of balloons being used for wilderness transportation in Alaska. MR. REGELIN responded that he isn't aware of balloons being used. He explained control use areas only restrict access in relation to hunting. During the hunting season people can still go in if they're not hunting with any means of access that they wish to. They just can't be in there on a four-wheeler or an airplane if they're hunting. He said he doesn't know of anyone who uses balloons for hunting. Number 2276 REPRESENTATIVE BERKOWITZ referred to allowing access for disabled people and asked how the Americans With Disabilities Act (ADA) impact the board's decisions to allow disabled people access. MR. REGELIN explained the department has reviewed the ADA with the Board of Game on several occasions. There are varieties of methods of access available for everyone. For almost 95 percent of the state there are no restrictions on access. The way the ADA law is written, they have an alternative opportunity in that you don't have to provide them an opportunity absolutely everywhere. REPRESENTATIVE BERKOWITZ explained that the ADA says that you have to make reasonable accommodations. He said it seems to him that there are instances where reasonable accommodation would allow people motorized access in an instance where otherwise they would have no ability to get there. Representative Berkowitz said what he heard Mr. Regelin say is that in these restricted areas, they have never let disabled people have motorized access. He said this to him doesn't seem to be a reasonable accommodation. MR. REGELIN stated that the Board of Game has never had or created a control use area to say that you may not use a four-wheeler or an airplane in this area and go on to say unless you're handicapped it's permitted. He said they haven't done that, but have looked at whether that would be proper. He reiterated that the vast majority of Alaska is open to any method of access that they would wish to use, so they are accommodated in other places. He noted most control use areas are small and are set up for specific purposes, that's why they haven't done that. Number 2384 ART IVANOFF, Maniilaq Association, testified against HB 168 via teleconference from Kotzebue. He stated that HB 168 is bad public policy in that it prevents the managers from taking pro-active as opposed to reactive measures in fish and game and management. Mr. Ivanoff explained the bill totally ignores user conflicts between sport and subsistence users. Rural Alaska continues to be fatigued by problems of high unemployment and the high cost of living that makes fish and game availability more critical than before. To compound the problem, we are in the midst of welfare reform. Mr. Ivanoff said the bill curtails the effectiveness of the regional Fish and Game Advisory Council in resolving local problems. It is the association's belief that the authority should be localized. Mr. Ivanoff informed the committee members that he believes that the Alaska Board of Game is careful and deliberate in making their decisions. In the past, only 1 out of 15 of the proposals for controlled use areas were considered and adopted. MR. IVANOFF said HB 168 only exacerbates an already precarious issue of fish and game use and management. The focus of the state legislature should be on building bridges as opposed to building walls. They should be building trust and understanding. TAPE 98-23, SIDE B Number 0011 CHAIR JAMES asked, "Has the Board of Fish and Game used any controlled use areas, or restrictions of controlled use, that has inhibited your ability to do subsistence hunting and fishing." MR. IVANOFF responded in the negative. Number 0030 REPRESENTATIVE IVAN IVAN said Mr. Ivanoff mentioned the proposals from local areas that are brought together by regional advisory groups. They're submitted to the Board of Game for consideration. He said, "Looking back at history, what percentage of those proposals have been adopted? For example, if you submit three, four, five proposals in a year, how many would be considered?" Number 0061 MR. IVANOFF responded that it took a considerable amount of time for Noatak control use area to be established. He said it was a timely process and it required the Noatak Fish and Game Advisory Council and the Kotzebue Fish and Game Advisory Council a long time to get the controlled use areas established. Number 0089 LARRY HOLMES, Chairman, Board of Game, testified via teleconference from Anchorage against HB 168. He said the board has concerns as HB 168 would significantly limit the Board of Game's ability to set up control use areas which is a proactive tool that the board uses to manage wildlife and reduce or eliminate conflicts between hunters. Control use areas, as they are applied by the Board of Game, typically affect only hunters and not non-hunters. He said control use areas can be used as a tool to manage wildlife by protecting habitat to ensure healthy population of wildlife for hunters to utilize. It can also distribute the hunter harvest on a species throughout an area so they are not over harvested or disproportionate harvested on a population game animal. The Board of Game also uses control use areas to maximize hunter opportunity in areas where there's a lot of hunter effort or when access on a certain population is so easy as to make that population vulnerable to over harvest which without that tool would contribute to significantly shortened seasons. Control use areas are also used to reduce conflict between different hunter groups. He pointed out that there are conflicts between motorized and non-motorized hunters, ORV and walk-in hunters, or even between motorized users, hunters using aircraft and boats, or between boat users themselves. These conflicts can escalate to the point that they need to be separated either in time or place. The board also uses control use areas to allocate between different hunter user groups. Number 0171 MR. HOLMES said often when the Board of Game adopts a control use area, it does so to accomplish several management objectives which he previously outlined. For example, the Ladue controlled use area was adopted by the Board of Game in 1995 to provide hunters an opportunity to hunt the moose population that was previously closed. The board opened the area to moose hunting, but restricted motorized use to an access corridor from September 1 to September 30, to prevent over harvest and distribute the harvest throughout the area. Since then, there has been a August 20 to August 28, hunt for spiked-forked moose developed with no restrictions and the drawing permit hunt of 25 permits with no restrictions from November 1 to November 30. MR. HOLMES mentioned there are minimal restrictions and hunter opportunity and hunting has been maximized using this controlled use area concept while ensuring a healthy sustainable moose population to hunt for the future. Another example is the Nenana control use area that was adopted also in 1995 to protect waterfowl habitat and reduce conflicts between air boat moose hunters and non-motorized boat hunters. MR. HOLMES pointed out another example is the Noatak controlled use area was adopted, he believes in 1993, to protect a significantly declining moose population, distribute the harvest and eliminate conflicts between local hunters using boats and non-local residents using aircraft hunting moose. He said that controlled use area is in effect from August 25 through September 15, and restricts use of aircraft for that period, however, residents may still use aircraft from August 1 through August 24, to hunt. In fact, the group that's most significantly impacted are the non-resident hunters. Under statutory authority the board is allowed to (indisc. - noise) them, when in fact there is a nonsufficient resource that provides for residents. MR. HOLMES said the Board of Game does not adopt controlled use areas without the support of local advisory committees and typically brings the effected hunting interest to the table to work a compromise. He said an example of that is game management unit 6. He concluded Alaska has the best wildlife management system in the world, the reason is because we have the best wildlife scientist and managers working with a public board that brings the people and these wildlife resources into the process to work with the board to make good decisions that effect wildlife and the people that use wildlife. He said the board urges the committee not to adopt HB 168. Number 0274 CHAIR JAMES asked if there is a restriction during a hunting season, could somebody go in that area if they weren't hunting. MR. HOLMES replied the ones on federal land may be different. He understands the ones on state land you can use motorized vehicles but you can't use them in transporting or hunting game. Number 0308 JEFF PARKER, Member of the Alaska Sport Fishing Association and Vice President of the State Council of Trout Unlimited, testified before the committee. He said he agreed with Mr. Regelin with respect to game and how it also relates to fisheries. These are issues that you decide case by case with respect to a particular fish or game situation. What HB 168 does, it is essentially an atomic bomb to deal with a fly, it is a very broad brush approach that just goes far beyond what is necessary. MR. PARKER pointed out, speaking specifically to fish, it is the authority of the Board of Fisheries that we're talking about, and that HB 168 would restrict, by which the Board of Fisheries creates bank only king salmon fishing locations on the Kenai River. He said those are the only places where you can actually reach king salmon from the bank instead of having to fish from boats. For years what the Board of Fisheries has done is prohibited the use of fishing from boats in those locations on the river, that's essentially a controlled use area in fisheries. Number 0371 MR. PARKER mentioned the board prohibits guides from fishing from their boats in which they are carrying clients. Only the clients fish, not the guides. That is again a controlled use area in effect on the fish side. He said this type of authority gets focused on in a very narrow viewpoint of issues with respect to game. What needs to be realized is that you are talking about the Board of Fisheries too. There are positive outcomes that are produced on the fish side as well as the game side. MR. PARKER said he would convey to Mr. Regelin that the committee should also be hearing from the Division of Sport Fish on this bill and opposing it. MR. PARKER spoke in respect to the Americans with Disabilities Act, he thinks the principal of covering their concerns is well accommodated by the vast majority of this state that is open to all forms of motorized access. Number 0423 REPRESENTATIVE ELTON stated Mr. Parker raised an interesting point. He asked if it was a Board of Fisheries provision that prohibited outboard motors greater than 35 horse power from being used on the Kenai River. MR. PARKER replied no, it was the Alaska Department of Natural Resources that prohibited that. It is the Board of Fisheries, however, that on the Kenai River prohibits guides from fishing from boats under this authority that is being effected by HB 168. It's the Board of Fisheries that creates, he believes a half-mile section and then another mile-long section of bank only fishing for king salmon on the Kenai River under the authority that would be effected by this bill. Number 0475 MR. PARKER said he realizes HB 168 would allow those existing prior decisions and regulations to stay in place. But the point is, this authority provides useful flexibilities to both the Board of Fisheries and the Board of Game. He stressed we should retain that flexibility to manage, as Mr. Ross said, case by case as the situation needs in each fish and game situation on the land. Number 0489 PATRICK WRIGHT, Chair, Anchorage Fish and Game Advisory Committee, testified via teleconference. He said the Anchorage Fish and Game Advisory Committee is composed of 15 members with a variety of backgrounds, these vary from sport fishing guides to lodge owners, big game guides, hunters, bow-hunters, fly-fishers, and wildlife photographers. He indicated there are also many users of ORVs and other types of access to our fish and game resources. MR. WRIGHT said he was given the authority by the Anchorage Fish and Game Advisory Committee to oppose HB 168. He explained the reason they are not in favor of the bill is because these are tools that are going to limit the Board of Game and limit the Department of Fish and Game. The way it might limit the Board of Game is not providing for their flexibility to adjust as conditions change in different geographic areas around the state. It may limit the Department of Fish and Game, especially on refuges and some of the lands that they manage. For instance, there are game refuges where access is limited during certain seasons to protect the habitat because over-land access could damage the marsh areas or wetlands. MR. WRIGHT pointed out the advisory committee is concerned with the language in HB 168 because it's very vague. He said, "Some of the terms used, such as 'traditional' - we don't know if the same criterion was used on that as customary and traditional requirements or criterion used in determining some other uses of the fish and game resources specifically having to do with subsistence." MR. WRIGHT indicated this would also limit the advisory committees in their ability as the primary public input into this system, the advisory committees are the grassroots of this. As an example, the Board of Game, a few months ago, brought the issue up about ORVs in Game Management Unit 13. When the Anchorage advisory committee held its public involvement on that, we found that the entire public that was present was opposed to limiting the access on the ORVs in this area. He mentioned this message was transmitted to the Board of Game. This is where the system can be opened for the public to work with the department and the Board of Game and we all end up with a better system. We don't want to have that flexibility infringed on, and we feel that this type of legislation would do that very thing. Number 0670 REPRESENTATIVE DYSON asked what types of modes of transportation, use conflicts do you anticipate in the Anchorage bowl area if this bill were to pass. MR. WRIGHT replied that the Anchorage advisory committee is not just looking at areas right around Anchorage. We might have some conflicts in the Bird Creek area and also just beyond there, there might be some conflicts if certain roads are opened into other areas such as Prince William Sound. The board would have to take a look at how the increased impact on the fish and game resources might warrant other types of possible controlled use areas because of opening it to large volumes of users then. Number 0727 EDWARD GRASSER, Legislative Assistant to Representative Beverly Masek, came forward to testify on behalf of Representative Masek. CHAIR JAMES asked him to respond to the comments on the controlled use areas out there, some are small but there are lots of other areas that are not controlled as she understood it. She noted their concern was that this is going to inhibit, even though they agreed that it would not interfere with any existing controlled use area. But then what it would do, would be not allow them to have any additional. What she heard, especially from the last person who testified, was that we may have to restrict things along the rivers or because of protecting habitat. Chair James believed that was already protected, she referred to page 3, line 5: biologically essential for the protection of a fish or game resource and a reasonable alternative for the traditional means of ... CHAIR JAMES also referenced page 2, line 11: biologically essential for the protection of a fishery resource or of fish and game habitat; CHAIR JAMES reiterated, it seems like the door is still for that kind of protection. She asked what specifically, kinds of protections this bill is going to do that it doesn't have without this bill, and what restriction of fish and game regulations is it going to be making. Number 0806 MR. GRASSER replied HB 168 would only take effect if the Board of Game or the Board of Fisheries was to institute the use of a controlled use area, basically in lieu of a refuge or something else. He pointed out that refuges, sanctuaries, and critical habitat areas can be suggested by the boards, Board of Fisheries and Board of Game, but they have to have legislative approval. MR. GRASSER explained that HB 168 would create a situation that, if they created a controlled use area, which they can do right now any size area for a long period of time, then that would also have to have legislative approval. In other words, they could essentially create a defacto refuge without going through the legislature. Right now, Title 16 requires, if they propose a refuge - and they're working on one right now in the Bristol Bay area, that has to come to the legislature for approval, they can't just create it on their own. CHAIR JAMES asked with this bill, or without this bill. Number 0841 MR. GRASSER replied without this bill. Title 16, right now requires that all refuges, critical habitat areas, and sanctuaries be given legislative approval if they're suggested by the boards. It says subject to legislative approval. CHAIR JAMES said HB 168 wouldn't let them do a pseudo set-aside without having legislative approval. In other words, they can't use a controlled access to set an area aside, which they currently could by making extending controlled access. MR. GRASSER said that's correct. Right now this is in AS 16.05.255 regulations of the Board of Game and the Board of Fisheries. Setting apart game reserve areas, refuges and sanctuaries in the water or on the land of the state, over which it has jurisdiction subject to the approval of the legislature. Number 0894 MR. GRASSER stressed HB 168 would require the same thing for a controlled use area if they in fact rated it as a facto refuge or sanctuary by having a long-term restriction. He pointed out that every single one of the examples that people giving testimony brought up, the Noatak controlled use area and the Ladue controlled use area, if this bill were to pass, those particular situations that are, the restrictions that are intact, within those controlled use areas could still be implemented by the Board of Fisheries or the Board of Game without coming to the legislature. MR. GRASSER said, "If you look at those controlled use areas, and I was on the board and voted for the Noatak controlled use area myself at the time, that restriction only takes place for about a month, this bill would not affect the board's ability to do that." He said if you understand hunting regulations, and most of the fishing effort is in the summertime, the boards both still have the ability to have restrictions placed on controlled use area type situations that would affect the peak use periods of those uses. In other words, they still have the flexibility to control major conflict situations. MR. GRASSER concluded nothing in HB 168 prevents them from continuing to do what we've already established in almost every single one of the controlled use areas that are one the books today could be created in separate areas of the state tomorrow without legislative approval. The only time they'd have to come to the legislature is if they were trying to create a defacto-type refuge situation where the restriction lasted for more than two and one half months a year. Number 0961 REPRESENTATIVE VEZEY said he is confused about the temporary restriction. He believes the legislature is not accomplishing anything by passing HB 168 because they are leaving the ability to enact temporary restrictions. He pointed out the hunting season is a temporary event, with most species it's not a year-around event. He asked, if this bill was to become law, why wouldn't the state close an area for a month, two months, or two and one half months (as Mr. Grasser said), and then open it back up, and then come back next year and do the same thing. Representative Vezey asked what prevents us in HB 168 from doing that. MR. GRASSER responded nothing in the bill would prevent the boards from doing that. He pointed out one of the concerns, this comes from a policy that was put out by the Department of Fish and Game on ORVs, and the Board of Game also adopted a policy. He believes Representative Masek's concern, and the concern of many of her constituents, revolves around this particular statement that's in the ORV policy which was adopted by the board. He said they have the policy for off-road vehicle use, and then they have a list of things that why they could effectively restrict ORV use. Mr. Grasser said the one that concerns us most is number four: Chronic conflicts with other user groups leading to a decline in the quality of an outdoor experience. MR. GRASSER pointed out who knows what a quality of an outdoor experience is, that's an indefinite term. He indicated his quality of outdoor experience may be different from somebody else's quality of outdoor experience. In that particular case, we're starting to see proposals come in the packet, and the boards addressing them. He indicated other people, besides hunters or fishermen, are putting them in because they think that they have a problem with a certain type of hunting use or a certain type of fishing use. HB 168 would preclude that type of esthetic reasoning for a restriction. MR. GRASSER reiterated the quality of experience is a question that is intrinsic to each individual. Right now we see several areas in the state that are closed with these types of restrictions because we want to protect somebody else's outdoor experience. While there are no areas in the state that are closed to hiking, photography, or any of these non-consumptive uses to affect the quality of experience for hunting, hunters have to put up with a bunch of people running around in the field. It sounds absurd, but that's the flip-side of what's going on. This bill would preclude the board from getting into that arena. He didn't believe that was the proper arena for the Board of Game or Board of Fisheries, he believes that would be the proper arena for the legislature or the Department of Natural Resources on land or water use. Number 1107 REPRESENTATIVE ELTON mentioned he is really confused now. He said, "Perhaps a follow-up to Representative Vezey's question, you begin by arguing in response to some of the testimony that we've heard, that this really won't stop the Board of Game or the Board of Fish [Fisheries] for doing this because collectively that eight months, in a three-year [mistakenly said three-month] period, you're talking about fishing seasons or you're talking about hunting seasons. So your response to a lot of the testimony is, 'Well, this doesn't make any difference.' Now you're testifying that the quality of a hunting experience can be degraded because of somebody's objection to ORVs, yet it seemed to me it just said that hunting seasons are long enough and the department, or the Board of Game can do that anyway." Number 1153 REPRESENTATIVE ELTON stated you can't argue one way against the testimony and then the other way saying that this stops the board from doing exactly what you're afraid they might do under the ORV policy because they can still do it anyway - you've testified earlier. MR. GRASSER replied no, they can only do a restriction for a short period of time. He said there are many hunting seasons, including the ones around the Anchorage area like the Nelchina Basin where the caribou season runs until the end of March. So if they were to create a restriction on an ORV access in the Nelchina Basin, and they wanted it to last the entire season, they'd have to come to the legislature. REPRESENTATIVE ELTON said when Mr. Grasser testified at HB 168's first hearing in the House State Affairs Committee that in Mr. Grasser recollection, there had never been a time in which the Board of Game had done anything that would exceed eight months in a three-year period. MR. GRASSER replied, not in his recollection, there maybe a control use area where it's longer than that. REPRESENTATIVE ELTON said HB 168 is addressing a problem that has never occurred. MR. GRASSER replied he believed the bill is trying to address a problem that is starting to rear its head. The pressure on the boards to start enacting more and more restrictions without regard to balancing uses on state lands is a major concern here. MR. GRASSER said the whole ORV question in Unit 13 was an out of board cycle, it wasn't in the normal board's cycle, the board decided to take that issue up out of cycle because of so-called pressure they said they were getting to work on ORV restrictions in Unit 13, or on ORV restrictions elsewhere. Mr. Grasser said, "We believe that that's going to continue and that some policy needs to be put in place that gives the board direction on those situations. I think you're going to see, from here on out a very significant increase in requests to the boards to restrict access." Number 1275 REPRESENTATIVE BERKOWITZ said this is a follow-up on what Representative Dyson said, he asked why is there a concern regarding ballooning, and if it's never occurred why are we defining it as "traditional." MR. GRASSER responded that he believes that, and that might be subject to amendments to the traditional access section, the drafter of the bill just took the traditional access language out of the Department of Natural Resource statutes and put them into HB 168. REPRESENTATIVE BERKOWITZ said the second thing that's more substantive. We're focusing on the eight months in a three-year span. He stressed that he is also concerned about limitations to 640 acres. ... That's not too terribly much land. Number 1328 CHAIR JAMES stated she believes there is a law that says changing the designation on a piece of property, 640 acres or larger, has to come to the legislature for a decision of parks or whatever. But they can do little ones, but not above 640 acres. She asked if she was correct. MR. GRASSER replied that's correct on land management decisions, but in the realm of Fish and Game management, through the board process, they could still create controlled use areas without regard to that particular statute. He said we just chose that because it is in statute and it's been the standard for other access concerns through the Department of Natural Resources. REPRESENTATIVE BERKOWITZ said he did not know how extensive the Noatak Reserve is, but he images it is significantly larger than 640 acres. MR. GRASSER responded that's correct. REPRESENTATIVE BERKOWITZ said if you wanted to affect regulations, even for two months at a stretch, on the Noatak Reserve, you'd either have to come to the legislature or make a crazy quilt of small 640 acre parcels, is that right. MR. GRASSER replied no that's not correct, it's in conjunction it's not separate. Six hundred and forty acres (indisc. -noise) is not just to stand alone, it's in the bill. You either have to have two and one-half months or (indisc.). He pointed out that if it is greater than 640 acres, but it doesn't last for more than two and one-half months, it doesn't have to come before the legislature. Number 1381 REPRESENTATIVE BERKOWITZ said this itemization is either temporary or it's applicable to less than 640 [acres], or it's biologically essential, or it's expressly authorized. These are not conjunctive, not and. MR. GRASSER replied that's correct. CHAIR JAMES stated she understands why the Board of Fisheries and the Board of Game people are worried about this. She said there's one fact that everybody has to understand, and that is the public's concern about who makes the rules. The whole issue of regulations, which Fish and Game boards do have extensive authorization to do these regulations because they are supposed to be the expertise, that has been challenged with the job of allocation of fish and game resources. CHAIR JAMES said without given a better system than we have currently, she did not know if she would agree with Larry Holmes that we have a very fine management of our fish and game. She thought we have a very good one, but did not know that it is the best it could be but she doesn't have a better solution to make it better. Number 1508 CHAIR JAMES said she does understand the conflict with the Board of Game and the Board of Fisheries with the public, she indicated it's not necessarily the public that's just the hunting and fishing people, it's the public with other people. She also understands the desire by the people to stop hunting and fishing, ... They are getting larger in number, there's fewer fishermen and fewer hunters and more and more people who want to utilize the outdoors for other things. CHAIR JAMES said, hearing from both sides of the issue, she can understand where the sponsor is coming from on this legislation. She recalled when the legislature was passing legislation that didn't allow the Department of Natural Resources to set aside a piece of property that is 640 acres or larger because they were having the same problem with pseudo parks of making designations, so now they have to get permission from the legislature to do that. The legislature is the lawmaking body in our government, we then give authority to other people to write administrative law which is what HB 168 is relating to. CHAIR JAMES concluded she agrees with Representative Masek, the sponsor, that the time to make protections for the future, even though a situation hasn't currently existed, is before it first happens because once it first happens then it's too late to change it. ... For example the previous bill, SB 275, where we want to make a change, ... but we can't make a change because it affects some people negatively. And so that's what happens, it seems if we're going to do this, now 's the time to do it and that it makes sense because it can protect us from things happening that might not be fair and then we'll create a constituency that we can't change it for. Number 1629 REPRESENTATIVE ELTON said he didn't disagree with a lot of what Chair James said, but under the testimony that was heard, it's not been a situation in which anti-fishermen have challenged fishermen, or anti-hunters have challenged hunters. It has been a situation which they're trying to accommodate the needs of different types of fishermen, or different types of hunters. From his experience in the fisheries, managing a fishery is not a science, it's more of an art and what we're doing is taking one of the tools off the toolbelt and managing those conflicts between fishermen, not between anti-fishermen and fishermen, but fishermen. REPRESENTATIVE ELTON stated the best example that the committee heard, in public testimony part, is the protection of king salmon fishermen on the banks of a river who are competing with people in a boat, it's not been anti-fishing against fishing. He thinks what they are doing, if they pass HB 168 where there is a blanket prohibition, is we're taking a tool off the toolbelt. This is like taking a management tool away in a situation. He indicated he has not received any phone calls from people saying the board shouldn't be able to do this. REPRESENTATIVE ELTON pointed out that the board process is a process in which - it's not a super group that is sitting there, they're receiving information from a lot of the regional advisory boards. Representative Elton mentioned the committee has not heard testimony from any regional boards saying we need this. He said the committee has heard testimony from an urban regional advisory group that we don't need this and that this is dangerous because it doesn't allow the Board of Fisheries, for example, to balance the needs of the bank fishermen versus the skiff fishermen. REPRESENTATIVE ELTON said he was concerned that they are making management decisions by the boards much more difficult in anticipation of a problem that has not arisen. Number 1780 CHAIR JAMES noted if there's a presumption that there may be a problem, it's time to fix it before it starts. She said however, the examples that Representative Elton gave - in this bill are authorized, we haven't changed any of those things. Chair James said she understands his concern. She pointed out that the legislature does give authority and takes it back. She indicated that she did not know if they ever gave them the authority, currently to do what is anticipated might happen in HB 168. She believed this is like a safety net. CHAIR JAMES mentioned she would take further testimony because it is very important for everyone to understand what HB 168 does. The fact that Representative Masek's constituents weren't on teleconference doesn't necessarily mean that they don't have an interest in this legislation. Number 1885 LARRY HOLMES, Chairman, Board of Game, Department of Fish and Game, testified in opposition to HB 168 via teleconference. He said he is not aware, as a member of the board, as an officer of the board, and as a former tenure member of an advisory committee, any situation in which proposals came to the board from an anti-hunting group to reduce conflicts between them and users in the field. Furthermore, the board has no authority to enact regulations that impact non-consumptive use. It only has the authority under statute which the legislature has given to the board, to enact regulations regarding the use of game and hunting in the field. MR. HOLMES said the other point he was going to make was regarding the tool, what happens if we lose this tool. In the worst case scenario, if these conflicts in some of these areas are allowed to continue, we could end up with a tier two hunt, we could end up with further divisions between users that are non-local residents and local residents over a game population that may in fact be in decline because of overuse or because of an impact to a specific segment or class of population of game animals being targeted by the hunting regulations. MR. HOLMES stressed this is a very versatile tool, the alternative is to reduce the seasons. A good example is the Delta control use area for sheep, if we have a regulation up there that provides for non-motorized access for two weeks, followed by motorized access. It's a very fair opportunity for different interests that want to hunt sheep. If the board were to repeal that controlled use area, and just allowed non-motorized use, he assured the committee members that they would have to go to a significant shorter period of time. He suspects, if there were people that were non-motorized users that wanted to participate in that activity, that we would probably see conflicts. Number 2058 MR. HOLMES indicated he was concerned with the term "essential" in HB 168: (3) biologically essential for the protection of a game resource or of fish or game habitat; MR. HOLMES explained his concern is who defines "essential," at what point does the productivity of a population have to drop, or the bull-cow ratio, of an ungulate population have to drop before we use the framework that's in front of us, as far as this legislation goes. He believes HB 168 is too loose for the board to work with at this point. He noted he didn't see any operative language as it's very very vague in a variety of places, in particularly that one. MR. HOLMES concluded, while that does still give the board the authority to use a controlled use area for biological reasons, he could see some group or an individual coming to the board and challenging the board's regulatory decision because in fact they had a different definition of "essential" than what the board adopted. Number 2140 CHAIR JAMES said they heard testimony that HB 168 is broad enough to not deny any of the controlled use areas, it's not intended to deny any of them and doesn't even eliminate the possibility of another controlled use area as long as it falls within these parameters. She asked Mr. Holmes if he was saying that the parameters of temporary nature, which is less than eight months in a three-year period, is not big enough. She asked him if he needed it bigger than that, or is that, supposedly that fits into the area that you've done so nothing that you're currently doing would be disallowed under this bill. Number 2192 MR. HOLMES pointed out AS 16.05.794, Means of Access, it states: After January 1, 1998 [mistakenly read 1997], the Board of Game may not adopt a regulation prohibiting the use of a traditional means of access to assist in taking game unless the prohibition is ... MR. HOLMES said and it goes on to list - and after each item it listed, it does not say "or," it says "and." For example: (1) temporary in nature and effective cumulatively less than eight months in a three-year period: MR. HOLMES said with existing controlled use areas that he's familiar with that may not have an impact. He indicated he would rather refer that to Mr. Regelin because he has a history of the controlled use areas and past board actions. Mr. Holmes referred to item two: (2) applicable to an area of 640 acres or less of land, water, or land and water; MR. HOLMES pointed out that in effect would eliminate a number of controlled use areas that are working very well. The Noatak is one, Ladue controlled use area is another, the one he just referenced, the Delta control use area for sheep is another. Number 2284 MR. HOLMES stressed he had a problem, he suspected the Department of Fish and Game, and other board members do too with the item biologically essential because it's not clear to him on how we're are going to define "essential." (Indisc.) point in the population do we make a decision. CHAIR JAMES referenced AAC 92.004, which is a fish and game policy for off-road vehicle use for hunting and transporting game( which is a fish and game regulation). She said, "And number four says ... that the Board of Game in its discretion take action to avoid or minimize the conditions. He said number four has chronic conflicts with other user groups leading to a decline in the quality of the outdoor experience." She asked Mr. Holmes to address that. MR. HOLMES said it is a relatively broad statement, but the way it's applied by the board, the Noatak control use area is a good example. People who live in the Noatak area have a real problem with people flying over the river in their aircraft, landing and taking up their camping sites, and competing with them in a much more efficient manner for the same resource. Another example might be the Delta controlled use area for sheep, motorized versus non- motorized. People that hunt on foot oftentimes feel that it does not enhance the quality of their experience to have someone on an ATV [all terrain vehicles] go buzzing by. CHAIR JAMES asked whether they're hunting or not. MR. HOLMES replied in this case, he said he was referring specifically to hunting because he is not aware of areas where there's significant problems of non-hunters affecting hunters in the field. TAPE 98-24, SIDE A Number 0001 MR. REGELIN said in context of what the board can regulate, it should have been written clearer. Number 0028 CHAIR JAMES referred to Mr. Regelin's comment that most all advisory boards support this and things have been just kind of moving right along without any conflict. She said she did not believe that's true, she believes there's been a lot of conflict, it hasn't just been air boats. Chair James said she understands that concern. CHAIR JAMES noted the conflict of not being able to go up the river with a 90-horsepower motor, as opposed to a shorter one, which has to do with what she believes is in trying to protect a group of people to be able to go up there, and not let people go up with a higher power, to get a moose is the type of issue where there's a real conflict. She asked what if a person only has the 90 horsepower motors, then they can't go hunting. She said she understands that there is always going to be someone (indisc.) of issues. CHAIR JAMES concluded, "But I don't necessarily think it's noncontroversial. And, I understand the sponsor's concern here about jumping in before something happens. And certainly, we're all aware of the competition for the use of our outdoors. And certainly we have laws on the books that says it's to be multiple use. And therein lies the problem, because does that mean that everybody needs to use everything, or does that mean that we have to have some areas set aside for every use so that multiple uses people can have a place to go. That's been the argument for a long long time. And so say that there's an area that could be set aside where the motorized vehicles can never go, that's more than 640 acres, forever without a legislative authority, seems to be part of the goal of this as opposed to doing it to be a controlled use area." Number 0190 MR. REGELIN said he would respond to the controversial part first. He said he thinks that there are probably a few people that have always used an area, and then they can't any longer and they don't like that. Hunting is something that people fight for harder than their hunting area and access. He said the Holitna River that was mentioned on limiting the size of the horsepower, was a conflict between the upriver and downriver users. People from the Bethel area were going upriver more than 200 miles and hunting in an area with a lot of villages in it and the board struggled with that. He indicated it was before the board probably five times over eight years, and they worked with the local users in both Bethel and in all his user communities, and that was a solution that they came up with. He said it seems to have worked, although, it's certainly the person that has the big engine, it's hard for him to go there. He still can, but it takes him a lot longer and essentially it keeps him from going. That doesn't mean they can't go hunting, they just can't go into that area. The board took into consideration that traditionally, they'd never gone up there - 250 miles up the river until they had big engines. Mr. Regelin pointed out once big engines came in, they started going up the river. He indicated it was a way to solve a conflict, it seemed to have worked, he didn't think it's very unpopular now. Number 0326 REPRESENTATIVE IVAN said he cannot accept Mr. Regelin's comments. He mentioned his family was aggressive in traveling 300, 400, 500 miles by dog team. (Indisc. - paper rustling), near the Anchorage area also, near Mount McKinley. His indicated his grandfather and father were well traveled. He explained that Aniak is close to his community, if they wanted to hunt, they could do it by dog team. He mentioned not everybody was restricted, they were in a small area. MR. REGELIN noted Chair James asked him to respond to whether or not the board can still do everything that they had been able to do in the past. He said he agrees, it looks to the future if there's a problem, the way he's seen it, they've never had one. He said he didn't understand why this was necessary. CHAIR JAMES said it was her understanding also that it doesn't interfere with anything that the Board of Game or Board of Fisheries is currently doing, it just kind of closes it down so they can't broaden what they are doing. REPRESENTATIVE ELTON said an interesting point was brought up by the person who testified on behalf of the board from Anchorage. Representative Elton asked Mr. Regelin how do you read this bill, in Section 1 and 2, (it's repeated) it provides that: may not adopt a regulation prohibiting the use of a traditional means of access to assist in taking fish unless the prohibition is REPRESENTATIVE ELTON explained that the section lists five prohibitions. He asked Mr. Regelin if he read this as the board would be prohibited from doing that unless all four, of the first four, are met. He asked do you read that as if there is as an "and" after (1) and an "and" after (2) and an "and" after (3), or do you read that as if there is an "or" after the semicolons? MR. REGELIN replied he reads that as an "or" - if you go down to number four, it says "or." If you want to make it more clear, you can put the "or" behind each one, but the way bills are structured, it's "or." Number 0551 MR. GRASSER pointed out the structure on that is the exact same structure as HB 23, last year, that the Department of Natural Resources supported and they used those stipulations as being for. He said that's how it went into effect after the bill passed, and was signed by the governor. REPRESENTATIVE IVAN said he appreciated Mr. Regelin's position on HB 168 and agreed that the mode of transportation isn't always by a 200-horsepower outboard motor or snowmachine, there are other means of getting there. Number 0581 REPRESENTATIVE VEZEY made a motion to move CSHB 168 (RES) from the committee with individual recommendations and attached zero fiscal note. REPRESENTATIVE ELTON objected. CHAIR JAMES requested roll call vote. Representatives Hodgins, Vezey, Dyson and Chair James voted in support of moving CSHB 168 (RES) from the committee. Representatives Ivan, Elton and Berkowitz voted against it. Therefore, CSHB 168 (RES) moved from the House State Affairs Standing Committee. ADJOURNMENT Number 0679 CHAIR JAMES adjourned the House State Affairs Standing Committee at 9:50 a.m.