Legislature(1995 - 1996)
02/27/1996 11:10 AM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SSCR 2 DISAPPROVING EXECUTIVE ORDER 95
REPRESENTATIVE GREEN announced HSCR 2 to be up for consideration.
SENATOR LEMAN announced SSCR 2 to be up for consideration.
CATHERINE REARDON, Director, Division of Occupational Licensing,
testified that last year the legislature chose not to extend the
life of the Big Game Commercial Services Board. That Board
sunsetted on June 30, 1995. Governor Knowles issued Administrative
Order 159 which assigned the regulatory functions of licensing and
disciplining hunting guides to the Department of Commerce and her
Division. The reason for the Administrative Order was that
requirements for guide licenses remained in statute, but the sunset
of the Board left no agency responsible for performing those
functions. The Governor believed it was in the best interest of
Alaskans to protect and manage the harvest of our vital game
resources and to be sure that only trained and licensed guides were
involved to meet health and safety concerns. At the beginning of
this session, the Governor introduced EO 95 which also transferred
the responsibilities of hunting guide regulations to the Department
of Commerce.
The reason for the Executive Order was to back up the
Administrative Order by clarifying the current legal situation. It
also clarified the statute for the public. When the Executive
Order takes affect, the statute books will be updated to replace
the word "Board" with "Department" so that when the public looks up
the law, they will be able to see and understand it, MS. REARDON
said.
Rejecting the Executive Order will do nothing to improve the
opportunities for legislation which this issue needs. It, in fact,
will cause some difficulties for the public. If the Executive
Order goes into effect, that will in no way preclude the
legislature from passing a bill improving the statutes, and
therefore supersede the Executive Order eventually. Rejection
would create a period of time, months perhaps, where the public is
unsure about whether guiding is an unregulated activity or whether
the Division is continuing to administer it.
Number 478
SENATOR TAYLOR asked what she understood sunset legislation to
mean. MS. REARDON replied that the Board sunsetted and went out of
existence when the legislature chose not to extend it.
SENATOR TAYLOR asked her why they are in the current process they
are in. MS. REARDON explained that we are in this process because
although the Board went away, statutory requirements that people
have guide licenses, or that out-of-state hunters be guided by
licensed guides, remain. Therefore, we can't have a situation
where we're demanding that the public satisfy a law, yet no one is
issuing the licenses that allow them to satisfy it.
SENATOR HALFORD asked if that was consistent with opinions of
attorney generals under the last four governor's since the sunset
law was passed or is that the opinion of the new administration.
MS. REARDON said she couldn't comment on the opinions of all the
attorney generals in the past, but it's consistent with this
Department of Law.
SENATOR HALFORD asked if she found any opinion other than the one
she has after the fact agreeing with that position. MS. REARDON
replied that she did not do a lot of research into previous legal
opinions. She left that to the Department of Law.
SENATOR HALFORD said this Board had nine members, but it had two
vacancies, and then it had several other people who were to expire
on June 30, 1995. By the time it actually sunsetted, it probably
didn't have a working majority. He asked if the Governor made any
appointments to this Board during the last legislative session.
MS. REARDON replied that the Governor did not make any appointments
during the last session, but there was a working majority, as
people remain on the Board until they are replaced. There was,
indeed, a Board meeting two days before the sunset. The new
administration had numerous appointments to make and she didn't
think having some vacancies on the Board was indicative of any
greater or less interest than other vacancies that existed at that
time.
SENATOR HALFORD stated that the Board had two vacancies, two people
expiring, and had two other members of the Board who had in writing
indicated they supported the sunset of the Board. That was six out
of nine either not there or in support of discontinuing the Board.
SENATOR TAYLOR said there is a much broader perspective that must
be contemplated which is the separation of powers between the
executive and the legislative branches. The entire substance and
basis for this entity revolved around "sunset legislation" which
the State does with many of its boards. It requires that the
legislature on a frequent basis review the necessity for the
existence of the board or commission, and if there is no need for
it to continue, the failure to act results in termination of the
board through the sunsetting process. To tolerate this end run
action that has been taken is to forfeit a significant portion of
the policy making authority of this legislature. To have it done
unilaterally and without consultation with the legislature is even
of more concern. This is a matter of legislative prerogative in
the policy setting arena within the State and not a matter of
executive order.
Number 529
SENATOR LINCOLN asked if the Executive Order is not upheld, what
happens to the guiding. MS. REARDON replied that would be an issue
of dispute, but the administration's position is that the
Administrative Order that was adopted last June would remain in
effect and that the Department of Commerce would continue to
regulate guiding. She said there is litigation in court on this
issue right now.
SENATOR LINCOLN asked what were the differences of opinion. MS.
REARDON replied that some people feel the administrative order was
not appropriate and, therefore, there would be no regulation of
guiding. The Administration clearly feels that the Administrative
Order was constitutional or else the Governor would not have done
it. They will continue to license guides as they are now.
SENATOR TAYLOR asked if it was the Governor's intent to dismiss or
fail to prosecute in the litigation that is currently ongoing
concerning the guide boards. MS. REARDON said she didn't
understand all the details of his question, but the State is the
defendant in this litigation.
SENATOR TAYLOR stated that he has seen the State spend a lot of
money preparing to litigate only to drop the matter at the last
moment. MS. REARDON said she didn't know what action the Governor
and his Department of Law would choose to take. They feel
confident that the Administrative Order was constitutional and feel
a lot of concern about a totally unregulated hunting guide industry
and the impact that will have on Alaskans and Alaskan game.
SENATOR HOFFMAN said this industry is purported to represent over
half a billion dollars income to Alaskans over the past few years.
He has a letter from Gary King, Jr., President, Alaska Professional
Hunter's Association, saying they did a survey of the working
members of their association. They received 79 percent of the
guide outfitters were registered guides and 21 percent were master
guides. They strongly opposed SSCR 2. He wondered from their
standpoint and from the Administration's standpoint how their
industry representing half a billion dollars to the State was going
to be protected if we do adopt the Resolution. MS. REARDON replied
that was the exact concern that led to the Governor's
Administrative Order and then the Executive Order. That there
would be fewer out-of-State and out-of-Country folks hiring
Alaskans to guide them, that people from out-of-state might just
set up shop guiding because it was unregulated, that there might be
more problems in rural areas with folks flying in to guide and
doing a lot of hunting that they didn't have the experience to do
safely and without interfering with local communities, that Alaska
would be a lot less appealing to big game hunters who spend
thousands of dollars to go on hunts.
SENATOR HOFFMAN said it seemed to him that by not doing this we are
taking potentially a half a billion dollars out of the pockets of
Alaskans. Jobs are hard enough to come by and for the legislature
to disregard the economic benefits of a half a billion dollars to
the State's economy doesn't seem to be the right thing to do.
TAPE 96-20, SIDE B
Number 580
REPRESENTATIVE DAVIES asked if there was further utility in the way
this industry has regulated itself having to do with the orderly
establishment of hunting areas and of trying to maintain an even
and equitable pressure on the game population, itself. MS. REARDON
replied that in addition to determining the qualifications of
guides and licensing them, the State licenses guide use areas. In
that way it has helped enforcement with knowledge of who is
permitted to guide where. It does allow for regulation and game
management.
REPRESENTATIVE DAVIES said the House had hearings on the Kenai
Peninsula with fisheries in the Kenai River and the fact that there
is such a large pressure on the resource that they would have to
consider some kind of limited entry approach. The existence of the
Big Game Commercial Services Board has helped to forestall that
situation.
Number 563
REPRESENTATIVE OGAN commented that he had the same concerns and he
would not be supporting this legislation if he thought they were in
any way letting the guide industry go down the tubes. There is a
bill that will place some parameters on the guide industry and he
felt confident it could be worked out this year.
REPRESENTATIVE DAVIES asked if there was anything in having the
Executive Order stand that would prevent that legislation from
occurring. REPRESENTATIVE LONG asked, aside from the fact that
there is a bill being drafted, what protection do people have in
the interim.
REPRESENTATIVE OGAN replied that the Administrative Order would
stand until that issue is settled in the courts. A long time
before that issue is settled there will be legislation.
Number 536
GEORGE UTERMOHLE, Legislative Affairs Agency, stated that the
problem that arises with the Executive Order they are considering
is that last year the Big Game Commercial Services Board expired.
The regulations which that Board enforced remained on the books
without an agency with authority to enforce them. At the
Governor's Administrative Order to resolve the issue, there was a
transfer of legal functions from the Board to the Department. The
Administrative Order is not provided for by statute or by
constitution. It has no more affect than a memo from the Governor
with a number on it. The status of guide outfitters and related
occupations is very much up in the air and is implied to be
repealed by the sunset of the Board. Subsequent actions by the
Governor to maintain regulation are currently subject to litigation
and there is legitimate basis for challenges to his actions. The
Executive Order is an appropriate order transferring functions
between an occupational licensing board and the Department. The
effectiveness of the Executive Order is in question because he's
transferring responsibilities which may or may not exist at the
present time.
A key provision of the Executive Order essentially ratifies
regulations adopted by the Department on expiration of the Board.
At that time the Department continued regulation of the industry by
adopting regulations. It is questionable whether or not the
Department had the authority at the time to issue those regulations
and continued regulation of the industry is in doubt.
By ratifying the regulations in the Executive Order the Governor
may well be exceeding the authority of the Executive Order power by
attempting to change the law rather than just transferring
functions.
SENATOR HALFORD asked how this same operation would affect all the
other boards, commissions, and agencies that are under the sunset
provisions if it would not be rejected. MR. UTERMOHLE replied that
it would add another layer of complexity to this unresolved issue.
The problem comes from the ambiguous language of the sunset statute
which provides for termination of boards, but is silent as to the
affect of that termination on the statutes that a board enforced.
Heretofore, it has been the opinion of the Attorney General that
when a board is terminated, the functions of that board also
terminate and any licensing functions performed by the board cease.
Number 480
SENATOR TAYLOR said he thought it was crucial that the legislature
reassert itself as a policy making body.
REPRESENTATIVE DAVIES said he disagreed that this action was done
in a confrontational way. He characterized it as an attempt to
rescue a situation where there is a very important industry and the
process they are going through today is one that is contemplated by
the constitution. The Governor can institute executive orders and
the legislature has the prerogative to turn them down. This is the
normal legislative process.
He asked what ambiguity in the sunset statutes he was referring to
with his previous comment. He asked what authority is granted by
the legislature within statutes to the Governor to proceed to
follow the statutes. Can the Department take on the authority to
administer statutes through issuing regulations. MR. UTERMOHLE
answered that the sunset legislation provides for expiration of
boards and commissions. The rationale is that the public was being
imposed upon by ever increasing numbers of boards and the
regulations they impose. As part of the sunset process the
legislature is to make a determination on a regular basis as to
whether or not the boards would continue. Our statutes, like a
majority of statutes in other sunset states, don't address what
happens to the statutes the boards adopt.
REPRESENTATIVE DAVIES asked him if he meant statutes or
regulations. MR. UTERMOHLE replied that he meant statutes; that
the regulations created by the board disappear with the board.
Statutes that the board enforces stay on the books. This is the
ambiguity he was referring to.
The Attorney General in this state and other states have taken the
position that those statutes are implied to be repealed and
unenforceable.
Number 439
REPRESENTATIVE OGAN reiterated that he is committed to cleaning up
the ambiguity. He worked hard last year to keep the guiding
industry headed right.
MR. UTERMOHLE continued by saying that the sunset law does not
provide for successors to an expired board and does not provide
authority to the Department of Commerce to assume responsibility
for the expired licensing functions. The one time a sunset board's
functions were transferred to a department was when those functions
were actually shared in the first place and the department was
statutorily assigned those functions.
REPRESENTATIVE DAVIES asked, assuming the statutes remain on the
books, would it be appropriate for the Department to take on that
regulatory power. MR. UTERMOHLE answered without those powers
being transferred from the board to some other entity by law he
didn't see how that could occur.
SENATOR LINCOLN asked if he knew how long it would be before there
would be a decision in court. She said they might be making a
decision now that might need undoing later. MR. UTERMOHLE said he
was aware of one case with the Big Game Services Board sunset issue
and it is still in the early stages in Superior Court. It would be
a number of years before the issue reaches the Supreme Court.
Number 350
SENATOR TAYLOR asked if the legislature rejects this Executive
Order and passes legislation resolving the issue, would the court
case become moot at that point. MR. UTERMOHLE replied that would
maintain the status quo in the case because it regards the
authority of the Governor to transfer functions under
administrative order.
SENATOR TAYLOR asked if they passed legislation resolving that
would that still move forward. MR. UTERMOHLE said it would depend
on the particular issues in the case.
REPRESENTATIVE WILLIAMS moved to pass HSCR 2 from Committee with
individual recommendations. REPRESENTATIVE DAVIES objected.
REPRESENTATIVE GREEN asked for a roll call vote. REPRESENTATIVES
NICHOLIA, LONG, and DAVIES voted no; REPRESENTATIVES AUSTERMAN,
KOTT, OGAN, WILLIAMS, and GREEN voted yes; and the motion passed.
SENATOR PEARCE moved to pass SSCR 2 from Committee with individual
recommendations. SENATOR HOFFMAN objected. SENATOR LEMAN asked
for a roll call vote. SENATORS HOFFMAN and LINCOLN voted no;
SENATORS TAYLOR, HALFORD, FRANK, PEARCE, and LEMAN voted yes and
the motion passed.
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