Legislature(1995 - 1996)

04/02/1996 09:15 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                 
  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                 
  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                 
  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                 
  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                           
  Page 15, line 8                                                              
       After "transporter" insert:                                             
            if  there  is   demonstrable  complicity                           
  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                 
  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                 
       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                 
  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.                 
  Due to need to attend the  Senate Floor Session, the meeting                 
  was adjourned at approximately 10:50 a.m.                                    

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