Valerie Brown, acting on behalf of Defenders of Wildlife, submitted the following letter to Alaska Department of Fish and Game Commissioner McKie Campbell spelling out why he should not sign the emergency regulations passed yesterday by the Board of Game. All of us will be very anxious to know the outcome.
VIA FAX AND FIRST CLASS DELIVERY
January 25, 2006
Commissioner McKie Campbell
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, Alaska 99802-5526
FAX: (907) 465-2332
Re: Emergency Regulations for Wolf Control
Dear Commissioner Campbell;
I am writing on behalf of Defenders of Wildlife to inform you of illegal actions by
the Alaska Board of Game today.
As you are aware, on January 17, 2006, the Alaska Superior Court issued a
decision and order invalidating the State of Alaska’s Wolf Control Implementation Plans,
codified at 5 ACC 92.125. Friends of Animals, Inc. v. State, Case #3AN-03-13489.
Today, without the statutorily required thirty-days notice and an opportunity for public
comment, the Board of Game adopted emergency regulations for five Wolf Control
Plans. The Board's action is illegal for at least two reasons.
First, the Board of Game's regulations require that the Board issue a public notice
and give the public an opportunity to comment before it adopts a Wolf Implementation
Plan. See 5 AAC 92.110(d)(5). Since the Board did not give the public an opportunity to
review and comment on the Plans, the Board's action adopting them violated its own
regulation and therefore is illegal.
Second, the Alaska Administrative Procedure Act requires that before new
regulations are promulgated, the public must be given thirty-days notice and an
opportunity to comment. See AS 44.62.190(a), 44.62.210(a). The Legislature intended
January emergency regulations to be used only where there is an actual emergency, i.e., when it is "necessary for the immediate preservation of public peace, health, safety or general
welfare." AS 44.62.250. It is the state’s policy that emergencies are held to a minimum,
and are rarely found to exist. AS 44.62.270. The Department of Law's guidelines for
drafting regulations also make it clear that emergency regulations should only be used
when “absolutely necessary” and where there is “truly” a risk to public peace, health,
safety or general welfare. Drafting Manual for Administrative Regulations, 16th Edition,
September 2005, p. 25.
The regulations adopted today, and the findings they are based on, do not address
any emergency. The Board's action was not "necessary for the immediate preservation of
public peace, health, safety or general welfare." AS 44.62.250. Simply put, a judicial
order invalidating the Board’s previous regulations authorizing wolf control plans is not
an “emergency” that justifies circumventing the public process mandated by the Alaska
Administrative Procedure Act.
Allowing the public ample opportunity to review proposed government actions and
to comment on public policy issues is the cornerstone of an open democracy. Notifying
and involving the public is even more important when the proposed government action is
unpopular and very controversial, as has long been the case with wolf control.
Therefore, Defenders of Wildlife requests that you refrain from granting any new
aerial gunning or land-and-shoot permits (or renewing/reinstating any permits granted
under the invalidated regulations) until the regulations are legally adopted under AS
44.62. The Board of Game is given the "prerogative to establish" the parameters of the
program, including who is authorized to participate. AS 16.05.783(d). However, after
the Board has done that, AS 16.05.783 does not require that the Commissioner act to
implement the Board's decisions regardless of their legality. When the Board has acted in
violation of its own regulations and the APA, the Commissioner should not implement
the Board's illegal decisions.
Thank you for your prompt attention to this serious violation of the public process.
Download Letter Here
- pdf format-
download free Acrobat Reader here
Defenders of Wildlife is urging that people call 907-465-4100 to let the Commissioner of the Department of Fish and Game know that:
You are extremely disappointed that the Board of Game voted to resume aerial gunning.
The Board should have dealt with this issue in a legal manner -- providing the required public notice and opportunity for public comment.
The Department of Fish and Game should not issue any aerial gunning permits and follow the law.