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State must manage predators for sustained yield, too

In April, Charles Wohlforth's commentary on Alaska's predator-control wars was published by the Alaska Dispatch News. But let us be frank, there will be no kumbaya moment of resolution until Alaska is forced to follow the law.

I practiced law in Alaska for 45 years and in 2008 litigated the issue of whether predators are included in Article VIII, Section 4 (sustained yield), of the Alaska Constitution. The State of Alaska refused to believe wolves and bears were included in the word "wildlife." Wohlforth refers to a 1997 National Academy of Sciences study, but fails to mention the academy study never cited the sustained-yield provision.

Article VIII, Section 4, is unique in the world. It requires "fish, forests and wildlife" to be managed for sustained yield. In 2008 I intervened in a consolidated lawsuit brought by several environmental groups (3AN-06-10956 C1). My only intent was to argue predators were included, but not to determine if the state's plans violated the law. It was first necessary to establish the law.

[Trump administration eyes looser predator control limits on federal lands]

The State of Alaska did not agree. In Superior Court, Judge William Morse agreed predators were included in the constitutional provision. The state appealed and lost on that issue. I consulted the Constitutional Convention (1955-56) records, minutes, correspondence, met with remaining living delegates and interviewed the science adviser to the National Resources Committee (now deceased). He confirmed that predators were included in the sustained yield. This research has been available to the state for 60 years. Why hasn't the state followed it? Even now, why not?

During constitutional debates, Mr. Peter Galbraith, a guest, spoke on predator control. He said it mostly did not work. During the constitutional process, no delegate inserted predator control by motion or amendment. Article VIII, Section 4, passed. It is unique because while statutes and regulations can be easily "adjusted," constitutional law cannot easily be fudged.

The case I won is West v. State of Alaska, Board of Game, [248 P.3d 689 (2010)]. Wohlforth gave the Constitution only one, short brief paragraph, but the constitutional argument is fundamental. The state is willingly, knowingly violating constitutional law. The court said the state is to use the same sustained yield definition for predators as that for prey in the Intensive Management Law. Alaska manages game by Game Management Units.

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I was told by an Anchorage area biologist with the Alaska Department of Fish and Game that wolves can sustain a 30-35 percent cull per year depending on the GMU. Bears can sustain much less because of the longer gestation and care periods. Literature from Fish and Game indicates a cull of 60-80 percent is needed to do predatory control. (They use the term extirpate instead of exterminate as that may be more tolerable.) Regardless of the state's financial problems, the state still pursues predatory control by its barbaric methods: killing bear cubs in their dens; pulling wolf cubs out of dens with treble hooks and shooting them, using poisonous gas, gunning from the air, or unsustainable hunting and trapping.

[It's time for Alaska to end extreme predator control measures]

In 2010, the Alaska Supreme Court said "… we conclude that the Board has both a constitutional and statutory duty to apply principles of sustained yield when it establishes predator control plans." And further, "… we hold that the principle of sustained yield set forth in Alaska's intensive management statute applies to predator populations, but that the management of wildlife resources may include a selection between predator and prey populations." This means the sustained yield can be allocated. This does not mean the state can cull (extirpate) below sustained yield of any species, predator or prey; otherwise Article VIII, Section 4, would be meaningless. It is up to individuals or conservation groups to bring appropriate lawsuits to force the state to comply.

There was a simple reason delegates included sustained yield in the Constitution. Having the benefit of looking at the other 48 states and how they wasted their resources, they did not want the same for Alaska. Even in 1955-56, there was thought about people eventually coming to Alaska to see its land and animals, according to constitutional delegate Marvin "Muktuk" Marston.

The Supreme Court also said "… we expressly reject the Board's position that the application of sustained yield to wolf and bear populations in predator control areas is discretionary and based only on its policy view that these 'highly valued resources' should be maintained as healthy and necessary components of our ecosystems, rather than any constitutional or statutory mandate." In short, a healthy population is more than just a necessary component; it is a constitutional requirement.

Ron West has practiced law in Alaska for almost 45 years.

The views expressed here are the writer's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com. 

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