Judge: board's e-mail polls illegal

Frontiersman staff

ANCHORAGE — E-mail polls of board members to determine whether a meeting is necessary to consider an emergency petition violate Alaskan law, a judge has ruled.

The ruling arises from a lawsuit over the 2010 decision by the Alaska Board of Game to eliminate a buffer zone around Denali National Park in which wolf hunting and trapping is illegal.

The Alaska Wildlife Alliance filed an emergency petition to have the zone’s elimination reconsidered in September 2012. The Alliance and director John Toppenberg are suing the game board and chairman Ted Spraker over the rejection of that decision.

Rather than hold an emergency meeting to consider whether the petition met the criteria for consideration, the Board’s director sent an e-mail asking board members whether they felt the petition met the criteria for an emergency meeting. A majority of board members did not, so the request for consideration was denied, according to the ruling issued Dec. 16 by Superior Court Judge John Suddock.

The board then sent an official letter to the alliance, stating its denial. It read, in part:

“The Board’s decision was not by a meeting, but by an e-mail poll consistent with long-standing practice on petitions for an emergency regulation when no Board meeting is otherwise scheduled within 30 days of receiving the petition.”

A second request was met with a similar denial, this time with a caution to reply only to game board staff, and not to one another via carbon copy e-mail, according to the ruling. The Alliance alleged a violation of Alaska’s Open Meetings Act (OMA) as part of a lawsuit over the decision.

While the decision initially appeared procedural, it was actually a rejection of the petition on its merits, Suddock wrote. The caution not to respond to each other to avoid the appearance of a meeting also failed an Alaska Supreme Court test known as “impermissible avoidance,” Suddock wrote

“There is no principled way to distinguish between what a board might consider to be a matter for summary resolution via an email pool and a matter apt for public scrutiny under the OMA,” he wrote. “The OMA protects robust public disclosure by simply depriving boards of the power to make such an arbitrary distinction. While the obvious alternative procedure of convening a noticed teleconference of the Board involves a certain measure of time and expense, that is simply how boards must conduct business in order to comply with the OMA.”

The decision was a secret rejection by a public entity, said Rick Steiner, an Alaska conservation biologist with the Alaska Wildlife Alliance.

“For too long, the Board has gotten away with secret backroom deals in dismissing public petitions to protect wildlife,” he said. “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.”

A survey of wolf-viewing opportunities conducted by the National Park Service in 2013 indicated that only four percent of Denali visitors were able to see the wolves, down from 44 percent for 2010, the last year the buffer zone was in place.

*An earlier version of this story contained a paragraph with incorrect statements about a filing for reconsideration in this case. That paragraph has since been removed.