Legislature(1995 - 1996)
04/02/1996 09:15 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR HOUSE BILL NO. 335(RES)(title am) An Act extending the termination date of the Big Game Commercial Services Board; eliminating the requirement for a commercial use permit and for payment of commercial use permit fees; amending the membership of the Big Game Commercial Services Board; relating to the qualifications for an assistant guide-outfitter license; eliminating the requirement for testing of assistant guide-outfitters; providing for additional licensing requirements for transporters; eliminating the requirement for prior approval to enter or remain on state and federal land; eliminating the requirement to register base camps; amending the definition of 'big game commercial services'; and providing for an effective date. Co-chairman Halford directed that CSHB 335 (Res)(title am) be brought on for discussion and distributed a work draft Senate Finance Committee Substitute (9-LS1156\N, Utermohle, 3/27/96) for review by members. He explained that the draft was reviewed by the sponsor, the Dept. of Public Safety, Dept. of Commerce and Economic Development, Dept. of Labor, and Dept. of Natural Resources. There is agreement on most of the provisions, but there are areas in which the constituency to be regulated is not happy. One group would like to have more regulation and more protection from competition. The other group seeks the opposite. Criminal provisions within the bill are "probably stronger than virtually any other profession" in the size of the fines and ability to consider some conduct a felony. Entry into the profession is primarily the same as under old guide laws. The profession is aligned with registered and master guides. A master guide is merely a senior registered guide. There are also assistant guides, class-A assistant guides, and transporters. The regulatory structure is similar to existing law. Provisions relating to powers and duties are transferred from the previous board to the department, with some exceptions. Penalties for violations can be as high as $30.0. That stems from existing law. Many objections have been raised by the profession over penalties that high. Questions also surround administrative sanctions and possible limiting of sanctions to those imposed by the courts. Co-chairman Halford acknowledged that the Dept. of Labor is not in favor of the 60-day exemption from wage and hour provisions for assistant guides in remote locations. This exemption is far less than existing exemptions set forth in law. Another provision for which there is department opposition but industry support relates to permission to use land. Under old law, permission must be obtained from federal, state, or private entities. The proposed bill continues to require that permission be obtained. However, since hunting areas are now simply registration areas through the Department of Public Safety, enforcement provisions must be carried out by the agency. JANE ANGVIK, Director, Division of Land, Dept. of Natural Resources, came before committee. She voiced concern over elimination of the requirement that guides furnish proof of prior authorization to use state lands. Based on past experience, if this requirement does not continue, commercial guides will most likely not seek state land use permits. While Title 38 provides the division with authority to require permits for all commercial uses, it does not provide an incentive for individuals to secure permits nor does it provide the division with enforcement capabilities. The only recourse against those who do not secure permits is through the civil courts. The division has no authority to issue citations resulting in financial penalties as does the Dept. of Fish and Game or the division of parks. The most significant management issue is need to identify those who leave garbage and solid waste on state lands. Ms. Angvik distributed photographs of debris left behind by camps. Ms. Angvik stressed need for proof of permission to use federal, state, or private lands (at the time of licensing) as an incentive to obtain permission. She asked that the bill be amended to require that proof. Since regulations became effective in 1993, there has been a 75 percent increase in those who came to the department to secure permission to use state lands. The division processes an average of 350 licenses at $350.00 each and has raised $132.0 through regulatory provisions. A decline is expected if provisions within the proposed bill remain as now drafted. Co-chairman Halford pointed to requirements that a guide notify the Dept. of Commerce and Economic Development of the guide unit within which he or she will be operating. The Dept. of Natural Resources can pursue guides who do not clean up camp areas. Proof of prior approval for use of a specific location proved to be a "bureaucratic nightmare" that applied only to guides. It was felt that application to this commercial entity alone was unfair since competitors such as fishing guides, ecotourism, etc. do not have to do the same. Co-chairman Halford stressed that the registration requirement in the proposed bill is an enforcement tool rather than an economic regulation tool. A guide must notify the department, 30 days in advance, of where the guide will be operating. That notification lasts through that particular year. This is a compromise between prior guide-use areas and the majority of the profession which would prefer not to have established areas. The Chairman stressed that the permit within the Dept. of Natural Resources, that applies to all commercial users of state land, is only being enforced against guides. Senator Phillips asked why it was not enforced against all users, and Ms. Angvik explained that the requirement was, in the past, directly connected to the guide license. The department does not have "that kind of a carrot" for other commercial users. Co-chairman Halford next noted teleconference participation in discussion of the bill. WAYNE WOODS, a guide from MatSu, next spoke via teleconference and presented the following list of recommended changes: Page 4, line 10: Delete current language in (a) and replace with: A major violation of a state hunting, guiding, or transportation services statute or regulation within the last five years. Page 6, line 16: Delete "18" and insert "21" Page 6, lines 22 and 23: Delete: In the management unit for which the license is sought. Page 6, line 27: Delete all of section (B) Page 10, line 11: After "$100,000," insert: In the case of registered guides, proof of financial responsibility shall only be required when applying for a guide- use area. Page 10, lines 23, 24, and 25: Delete Secs. (2) and (3) Page 11, line 31: Add a new section to read: (1) the department shall act on disciplinary matters in a timely manner, and the department may only impose disciplinary actions that are no greater than those imposed by a court of competent jurisdiction, nor may the department impose any disciplinary action that extends beyond the limits of a judgment of conviction imposed by a court of competent jurisdiction. Page 12, line 2: Delete "20" and insert "30" Page 15, line 2: Replace "is" with "may be held" Page 15, line 4: After "guide" insert: if there is a demonstrable complicity shown Page 15, line 8 After "transporter" insert: if there is demonstrable complicity shown Page 16, add to definition section: 'guide-use area' means a game management unit or sub-unit as defined by the board of game 'major violation' means: (1) hunting the same day as airborne (2) wanton waste (3) hunting in a closed area (4) taking game during a closed season Mr. Woods advised that with incorporation of the foregoing changes, he felt he could work well "within this set of regulations." Senator Zharoff raised a question regarding the meaning of "demonstrable complicity." Co-chairman Halford explained that it relates to guide responsibility for the actions of his or her employees. Current law imposes a high standard. The proposed language requires that complicity be shown. JEFF BUSH, Deputy Commissioner, Dept. of Commerce and Economic Development, came before committee in response to the question. He said he did not know if there is a legal standard known as "demonstrable complicity." All criminal provisions within the bill require knowledge. He then voiced his assumption that "knowledge" would constitute "demonstrable complicity." He suggested the following as alternative language: Page 15, lines 4 and 8: If the registered guide knew or should have known of the violation. In response to a question from Co-chairman Halford, Mr. Bush noted that the department is on record in support of the bill. He concurred in concerns raised by other departments but said he felt comfortable with the legislation. Senator Phillips advised of the following notes on behalf of Senator Rieger who had previously left the meeting: Page 4, lines 9 through 15: Concern that language represents an all-or-nothing proposition. Page 15, line 8 Change "for" to "of" Page 16, between lines 30 and 31: Add a new sec. (e) containing double fees for non-residents. Co-chairman Halford said he had no objection to doubling fees. He then asked for the department's position. Mr. Bush referenced discussion of the issue with the Dept. of Law. The position from a policy perspective is one of support for the concept. The position from the Dept. of Law perspective is that it would probably be unconstitutional. Co-chairman Halford asked why the increased cost would not apply to guide licenses since it applies to fishing licenses. Mr. Bush noted that the courts have allowed an agency to charge the "full cost of a licensed activity to a non-resident" and essentially subsidize residents. In this case the entire cost is paid by licensees. There is no state subsidy. Co-chairman Halford suggested that enforcement and DNR management of lands are part of the costs associated with the common property resource. The license fee covers only the direct cost of the license. Mr. Bush advised that he was not an expert and deferred further comment to staff from the Dept. of Law. The Co-chairman noted that out-of-state hunters pay more for licenses. Senator Zharoff noted that Legislative Research conducted a brief survey of ten western states and determined that six states, including Alaska, charge the same licenses fee for both resident and non-resident guides. Utah and Washington do not license big game guides. Arizona charges $100.00 for a resident and $500.00 for a non-resident. Oregon requires registration rather than a license for outfitters and guides. Residents pay $50.00, and non-residents pay according to similar fees in their own states. Co-chairman Halford expressed concurrence in the higher fee, saying he would insert "whatever the Dept. of Law will tell us works." Mr. Bush said the department would have no problem adjusting its fees for non-residents and residents. He cautioned, however, that since fees pay for administration of the license program, the department would need supplemental funding should the issue be litigated and refunds to non- residents be ordered by the courts. BETH KERTTULA, Assistant Attorney General, Natural Resource Section, Dept. of Law, next came before committee. She referenced ongoing litigation over the three-to-one fee differential in the limited entry commercial fishery. The question is whether the state incurs costs for non-residents that it does not incur for residents. Ms. Kerttula urged that those costs be quantified. END: SFC-96, #63, Side 2 BEGIN: SFC-96, #64, Side 1 Mr. Bush cautioned that there is both a legal risk, in terms of justification, and a financial risk--the higher the differential, the more potential money is at stake in a lawsuit. Co-chairman Halford queried members concerning the ratio to incorporate within the proposed bill. Senator Sharp suggested 2 to 1. Senator Zharoff expressed a preference for 3 to 1 but concurred in the suggestion by Senator Sharp. ADJOURNMENT Due to need to attend the Senate Floor Session, the meeting was adjourned at approximately 10:50 a.m.