Saturday, January 10, 2015

Judge rules Board of Game violated open-meetings law in wolf decision

POSTED: Jan 07, 2015 
Kenai Wolf
USFWS Headquarters
  A judge has ruled that the Alaska Board of Game violated state open-meetings law in 2012, when members decided via email to reject requests that it consider protecting Denali National Park wolves from trapping.

Superior Court Judge John Suddock issued an initial ruling granting the Alaska Wildlife Association’s challenge Dec. 16, followed by a Dec. 31 denial of a request for reconsideration from the Board. The AWA announced Suddock’s second decision late Tuesday evening; representatives of the group weren’t immediately available for comment Wednesday morning.

“For too long, the Board has gotten away with secret backroom deals in dismissing public petitions to protect wildlife,” conservation biologist Rick Steiner said in AWA statements hailing the rulings. “At long last, that day should be over. This is a real step forward in public, transparent and honest fish and game management, something that is long overdue in Alaska.”

The case dates back to 2010, when the Board removed a “buffer zone” near the park in which wolf trapping was barred. In May 2012, a pair of wolves from the Grant Creek pack were trapped just outside park boundaries, drawing condemnation from both the National Park Service and Steiner.

According to Suddock’s summary of the case, on Sept. 16, 2012 the Alaska Wildlife Alliance emailed Kristy Tibbles, the Board of Game’s executive director, seeking emergency consideration of a ban on trapping wolves in eastern areas of the park.

Tibbles emailed the request to the board’s seven members, accompanied by commentary from the state Division of Wildlife Conservation, and asked whether they thought the petition should be rejected or warranted convening a Board meeting. On Sept. 19, 2012, she sent the Alliance a letter saying the petition had been rejected after an email poll of members, “consistent with long-standing practice on petitions for an emergency regulation when no Board meeting is otherwise scheduled within 30 days of receiving a petition.”

When the AWA added information to its request and submitted a second petition, Tibbles also emailed it to Board members but added the following paragraph:

Please e-mail your response back to me without cc’ing other Board members or anyone else. Because this vote is by e-mail rather than in a meeting or teleconference, Board members should refrain from communicating with each other before voting has been completed by the Board and announced by me.

After the second petition’s denial, the AWA told local media in November 2012 that the park’s wolf population had fallen to 54 wolves from 143 in 2007. In March 2013, the AWA sued the Board of Game citing the Open Meetings Act.

While Suddock initially found that the Board had authority to define and format its meetings, he changed his mind when the case moved to oral arguments. He cited Alaska Supreme Court decisions in 1985 and 1994, which held that Anchorage Assembly members meeting with a contractor at a work site and board members consulting off-the-record before holding a pro-forma public meeting both violated the OMA because they complied with its letter but not its spirit.

“At first blush, the Board of Game’s decision not to convene appeared largely procedural to this court,” Suddock wrote. “But it was in effect a denial of the Wildlife Alliance’s petition on the merits. Had the board convened it would obviously have been required to meet publicly. The Board’s director expressly directed members not to confer to avoid the appearance of a meeting. This stratagem falls within our Supreme Court’s defiinition of impermissible avoidance of the strictures of the OMA.”

Suddock’s decision barred the Board from “utilizing serial postal, telephonic, or electronic polling of individual board members” in deciding whether to convene meetings on emergency petitions.

When the Board challenged Suddock’s ruling, he responded Dec. 31 that its members were free to convene between regularly scheduled meetings as often as they liked -- as long as they did so in public.

“The Board is free to schedule monthly or bi-monthly telephonic meetings to consider any petitions filed during those intervals,” Suddock wrote. “The meetings can be as abbreviated as the Board wishes. But they must be publicly accessible. The opening meeting law simply deprives the Board of the power to make what are effectively collective decisions by pretending that the sum of individual decisions is something other than official board action requiring transparency.”

Citing that need for transparency, Gov. Bill Walker announced Tuesday night that he was dismissing three directors from the Alaska Gasline Development Corp.’s board, as well as ordering state officials still on the board not to sign a planned confidentiality agreement at a meeting this week.
Alaska Department of Law spokeswoman Cori Mills said in a statement emailed to Channel 2 Wednesday afternoon that the department was "disappointed" with Suddock's reversal of his initial decision, citing the potential expense of additional Board meetings.

"We believe the most recent decisions are incorrect in effectively requiring, at great cost to the agency, a meeting to decide whether to hold a meeting on an emergency petition," Mills wrote. "The Department of Law will be consulting with the Board of Game and Department of Fish and Game about options in the case, including whether to appeal to the Alaska Supreme Court."

Mills also pointed out available opportunities for the petitions to be heard during standard Board of Game meetings since the board members' email decisions to refuse them.

"Notably, the plaintiffs could have re-filed their petitions within 30 days of six regular Board of Game Meetings held during 2013 and 2014, and the petitions would have been heard at any of those public meetings.  The plaintiffs chose not to.