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