Legislature(1995 - 1996)
02/08/1995 08:07 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 8, 1995
8:07 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative Bill Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative Ramona Barnes
Representative John Davies
Representative Irene Nicholia
Representative Eileen MacLean
MEMBERS ABSENT
Representative Pete Kott
COMMITTEE CALENDAR
*HB 102"An Act extending the termination date of the Big Game
Commercial Services Board."
PASSED OUT OF COMMITTEE
WITNESS REGISTER
JEFF LOGAN, Legislative Assistant
House Resources Committee
State Capitol, Room 24
Juneau, AK 99801
Phone: 465-4931
POSITION STATEMENT: Presented Sponsor Statement for HB 102
GEORGE UTERMOHLE, Legislative Counsel
Legislative Affairs Agency
4th Floor Goldstein Building
Juneau, AK 99801
Phone: 465-2450
POSITION STATEMENT: Provided an overview on HB 102 and answered
questions
KARL LUCK, Director
Division of Occupational Licensing
Department Of Commerce & Economic Development
P.O. Box 110806
Juneau, AK 99811
Phone: 465-2534
POSITION STATEMENT: Answered questions on HB 102
GERON BRUCE, Representative
Alaska Department of Fish and Game
P.O. Box 25526
Juneau, AK 99811-5526
Phone: 465-4100
POSITION STATEMENT: Supported HB 102 and answered questions
JOE CLUTCH, President
Alaska Guided Outfitters Association
King Salmon, AK 99613
Phone: 246-3030
POSITION STATEMENT: Supported HB 102
PREVIOUS ACTION
BILL: HB 102
SHORT TITLE: EXTEND BIG GAME COMMERCIAL SERVICES BOARD
SPONSOR(S): RESOURCES
JRN-DATE JRN-PG ACTION
01/20/95 101 (H) READ THE FIRST TIME - REFERRAL(S)
01/20/95 101 (H) RESOURCES, FINANCE
02/01/95 (H) RES AT 08:00 AM CAPITOL 124
02/01/95 (H) MINUTE(RES)
02/08/95 (H) RES AT 08:00 AM CAPITOL 124
ACTION NARRATIVE
TAPE 95-11, SIDE A
Number 000
The House Resources Committee was called to order by Co-Chairman
Joe Green at 8:07 a.m. No roll call was taken.
HRES - 02/08/95
HB 102 - EXTEND BIG GAME COMMERCIAL SERVICES BOARD
JEFF LOGAN, LEGISLATIVE ASSISTANT, HOUSE RESOURCES COMMITTEE, PRIME
SPONSOR, stated HB 102 extends the Big Game Commercial Services
Board (BGCSB) whose duties are set forth in AS 08.54.300-330. He
said in 1989, the legislature passed HB 112 which repealed the Big
Game Guide Board and replaced it with the Big Game Commercial
Services Board. He explained HB 112 was the product of work by the
legislative task force on guiding and game. The task force was
created to address conflicts between different groups profiting
from the harvest of Alaska's big game.
MR. LOGAN told committee members HB 112 included language to sunset
the board in 1993, but the legislature allowed a one-year extension
last year with HB 266. Title 8, which regulates boards and
commissions, allows the board one year after the sunset date to
terminate its operation. He stressed unless the legislature passes
HB 102 this session, those who receive compensation from the
commercial harvest of Alaska's big game resources will not be
regulated.
Number 028
GEORGE UTERMOHLE, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS AGENCY,
stated HB 102 extends the termination date for the BGCSB. He
explained the BGCSB is the successor to the Big Game Guide Board
and is the brainchild of the legislative task force on guiding and
game, established by the legislature in 1988, to address the issues
the legislature felt were important regarding the commercial use of
the big game resources of the state. He said during deliberations,
the task force reached three major conclusions.
MR. UTERMOHLE said the task force determined that the commercial
use of big game was a valid and important use of the game resources
of the state. The task force identified three classes of
commercial users of big game including those who directly provide
services to big game hunters (the guides and outfitters), those who
provide transportation services to big game hunters (air taxi and
charter boat operators), and those who provide ancillary services
to hunters (lodge operators, videographers, etc.). He stated the
task force decided all three groups should be regulated and
provided for a revised board.
MR. UTERMOHLE stated the BGCSB is a regulatory board within the
Department of Commerce and Economic Development and consists of
nine members. He explained five members of the board are from the
regulated profession, one member is an ex-officio member of the
Board of Game, one member represents Native land owners, and there
are two public members. He pointed out the basic duties of the
BGCSB is to administer an exam to applicants for all classes of
guide outfitter licenses and to determine the qualifications for
each of the minor classes of guide outfitter licenses.
MR. UTERMOHLE told committee members that part of the
responsibility of the BGCSB is to establish standards of
performance for each of the regulated professions. The BGCSB is
responsible for prohibiting unsportsmanlike and unethical conduct
among the regulated professions, for authorizing licenses for
transporters and for issuing commercial use permits. He added that
the BGCSB is responsible for imposing disciplinary sanctions on
members who are found to violate the statute or regulation issued
by the board.
MR. UTERMOHLE stated the primary discretionary duty given to the
BGCSB is the responsibility for establishing exclusive guide areas.
The legislative task force on guiding and game was in the middle of
their work, looking at the issues associated with the Big Game
Guide Board, when the Owsichek decision came down. At that time,
the task force was too far along and it was too late in the
legislative session for them to fully address that issue as part of
their initial charge. Therefore, the legislature extended the task
force another year to look at the issue of exclusive guide areas.
REPRESENTATIVE JOE GREEN asked Mr. Utermohle to explain the
Owsichek decision.
Number 087
MR. UTERMOHLE explained the Owsichek decision arose out of the
practice of the former Big Game Guide Board establishing exclusive
guiding areas, which is an area where a single guide or a select
group of guides were given essentially a franchise to conduct
guiding operations in that area. He said Mr. Owsichek challenged
that policy under the common use provisions of the Alaska
Constitution and the Supreme Court found Mr. Owsichek to be right.
The Supreme Court found that the system the board had set up
violated common use and was essentially creating a closed class of
users for the use of resources in particular areas.
MR. UTERMOHLE noted that in the course of the Owsichek decision,
the court set down basic guidelines which it thought might be a
constitutional approach to the issue. He said the task force took
the limited guidance the Supreme Court gave them and proposed a
system in legislation that would allow for exclusive or limited use
areas. He stated that legislation failed to pass. Anticipating
that might be the result of any legislation to authorize exclusive
guiding areas, the task force gave the BGCSB the power to establish
these areas on its own by regulations but suspended that power for
one year hoping the legislation would authorize it by statute.
Since the legislature did not do that, the BGCSB has since
attempted to develop appropriate regulations on its own.
REPRESENTATIVE SCOTT OGAN asked Mr. Utermohle to clarify what an
exclusive area is and asked if those areas are in place now.
MR. UTERMOHLE responded that he has not followed the actions of the
board since it was created. He was not sure of the status of the
board's regulations.
Number 125
REPRESENTATIVE ALAN AUSTERMAN stated the BGCSB has created the
areas but they have to be renewed fairly often, so they do not
become exclusive.
MR. UTERMOHLE said the criteria given to the BGCSB as a result of
the Owsichek decision suggests that any system the board sets up
has to be of short term duration, have ample access for any guide
to be able to apply and qualify for that area, and have some sort
of return to the state for the limited access use of the game
resources in that area.
REPRESENTATIVE OGAN noted he served on the BGCSB for two years. He
explained the BGCSB sets up areas which are called guide use areas,
but the areas are not exclusive. He said guides are registered and
given three areas for a period of five years. He added that anyone
can register in a particular area. Therefore, no one owns the
rights to the area but they are limited to the area for five years
and at that time, they can then select another area. He noted when
the Big Game Guide Board was in existence, guides would own the
real estate and have exclusive use of a certain area. He said the
value of the area was so high because the hunting was good and the
area would be sold to another guide. The Supreme Court determined
the guides were selling rights to the resource which belonged to
all of the people.
CO-CHAIRMAN GREEN noted for the record that Representatives
Nicholia, Davies, Williams, Ogan, and Austerman joined the
committee shortly after the meeting began.
Number 164
MR. UTERMOHLE stated the BGCSB was first established with a sunset
date of 1993, which was four years after the board was created. He
said the board was not extended in 1993, so it went into its wind
down year in 1994. In 1994, the legislature extended the
termination date one year to continue the board in its wind down
year, which is what it is in now, and during this period the board
should be preparing to go out of business. He felt it was
important for the committee to understand that if it is the
decision of the legislature for the BGCSB to sunset, it is quite
important to address the issue of what to do with the functions of
the board. He stressed existing statute cannot be relied on to
continue the present system. He said either the entire guide
licensing system must be repealed or all of the functions must be
transferred to the Alaska Department of Fish and Game (ADF&G).
MR. UTERMOHLE explained the powers for licensing and the regulation
of guide outfitters, transporters, and commercial use permit
holders is so interdispersed between the department and the board,
a clean transition is not possible. He stated it would be very
hard on the guide outfitters to clean up their affairs beginning
July 1 when they may lose their ability to hold a license. It
would also be difficult for people to receive new licenses if there
still is a requirement that a person, in order to guide outfit in
the state, must have a license and commercial use permit. He felt
those issues need to be addressed.
Number 190
REPRESENTATIVE AUSTERMAN wondered why the BGCSB was only extended
one year.
MR. UTERMOHLE responded he did not know.
REPRESENTATIVE OGAN stated the BGCSB suffers from preconceived
notions of the way the board formerly was run. He said there was
favoritism on the former Big Game Guide Board and there was a
member of the other house who had problems with the favoritism in
the past. He felt the BGCSB deals with people on a fair basis and
takes a real hard position for crooks and bandits. He noted the
BGCSB would give maximum sanctions against licenses or fines to
people who are violators.
REPRESENTATIVE EILEEN MACLEAN wondered why the figures in the
change in revenues section of the fiscal note fluctuates every
other year.
KARL LUCK, DIRECTOR, DIVISION OF OCCUPATION LICENSING, DEPARTMENT
OF COMMERCE & ECONOMIC DEVELOPMENT, responded the reason for the
fluctuations is that every two years, the guides and outfitters
renew their licenses and there is a peak in the revenue generated.
He said the transporters are one year licenses.
REPRESENTATIVE MACLEAN said when looking at a fiscal note, one
looks at it on a yearly basis. She expressed concern on this
particular fiscal note because there is a drop in revenue every
other year and a double increase in revenue every other year.
MR. LUCK replied the operating expense remains consistent each
year. He said some of the licenses are two year licenses and when
those licenses are renewed, the department has a peak in that year.
In the off year, when the one year licenses are the only licenses
which renew, the department has a valley and that is why the
revenue decreases in those off years.
Number 280
REPRESENTATIVE JOHN DAVIES asked if it is necessary for all of the
two year licenses be renewed in the same year.
MR. LUCK stated the licenses all expire on the same date in a
particular year and the department has gone to a two year period
for all of the licenses throughout the division. Therefore, the
division can be in a cycle of bringing in revenue. He said during
renewal periods, there is a dramatic increase in the division's
operating tempo.
REPRESENTATIVE DAVIES clarified the two year system is preferable
for the division.
MR. LUCK said that is correct. He noted by using that system, the
division can do the job much more cost effectively and efficiently.
He added that the division has been able to combine certain
functions such as issuing business licenses and professional
licenses at the same time. The division produces one piece of
paper, sends out one renewal form, and processes one check.
CO-CHAIRMAN GREEN noted for the record that Representatives MacLean
and Barnes had joined the committee.
REPRESENTATIVE OGAN wondered if the general fund/program receipts
is the amount the division brings in.
MR. LUCK stated those figures represent all program receipt money.
He said the BGCSB is self-sufficient and added the board has been
more than self-sufficient over the last licensing period.
Therefore, the division is reducing the board's fees accordingly.
Number 325
REPRESENTATIVE BARNES read from a letter she received from a guide
who said, "We have blown it. We have squandered all of the money
trying to reinvent state sponsored exclusive guide areas and have
no more funds or time for responding to and prosecuting criminal
complaints. This lack of priorities has taken its toll on the
industry." She asked Mr. Luck to respond.
MR. LUCK said he was not familiar with the specific case the writer
was interested in. He stated the division has been prosecuting
every case and added that the issue results from a disagreement
with the guide use area scheme the board has been attempting to
implement and has implemented. He noted there is still some
disagreement on the behalf of some guides. He explained some
guides want four areas instead of three areas or they would like to
change their areas within the five year period. He pointed out the
BGCSB does have money and is self-sufficient.
REPRESENTATIVE BARNES continued reading the letter, "I am willing
to pay several hundred dollars for an annual renewed registered
guide outfitters license if the money will be spent to hire an
additional investigator or fund investigations." She said
somewhere in the letter the writer indicates that in most cases it
takes more than two years to prosecute a case.
MR. LUCK responded each case has its own complexities and some
cases may take more than what one would think would be the
appropriate time. Other cases are as simple as someone who has
been convicted of a federal crime and has been prosecuted under
that statute. In that case, the document comes over to the board
and the board can take action. He said the resources available to
the division can always be increased if that is the will of the
legislators. He noted the division increased its investigative
staff last year but it was not for the BGCSB. The BGCSB has one
investigator and his case load totals approximately 80 to 100
cases.
REPRESENTATIVE BARNES asked what the current number of guides are.
MR. LUCK replied in all categories of licenses, there are
approximately 1,400 licenses.
REPRESENTATIVE MACLEAN questioned the number of employees the
division has.
MR. LUCK responded the division has 55 employees.
REPRESENTATIVE MACLEAN noted the fiscal note indicates two full-
time employees.
MR. LUCK stated the division has two licensing examiners who are
assigned to the BGCSB and one of those two is assigned other duties
also. He explained all of their time is kept in a positive
timekeeping, so the allocation of their expenses is to whatever
profession they are licensing. He noted there are two licensing
examiners, one investigator, and the supervisors for those three
positions.
REPRESENTATIVE OGAN commented when there is a violation of state or
federal statutes, a guide is charged with a violation. Many times
a license will be suspended until the BGCSB can hear the sanctions
on the licenses. He said violators generally suffer the
ramifications of the criminal action through the court system and
then at some point, a hearing officer hears the case and makes
recommendations to the board as to what the sanctions are on the
license. He stated if a significant violation is involved, the
guide's license is usually suspended by the court, meaning they are
out of business which can cost a lot of money.
Number 430
GERON BRUCE, REPRESENTATIVE, ADF&G, stated according to a study
just published called "An Economic Impact Analysis of the Big Game
Hunting Guide Industry in Alaska", the guiding industry in the
state contributes about $80 million a year to the state's economy.
He said when one looks at the revenue generated to the wildlife
portion of the fish and game fund, about 70 percent of the revenue
in fiscal year 1993 was from nonresident hunters who are a small
percentage of the total hunters. He noted the guiding industry
provides a significant revenue into the fish and game fund which
then funds wildlife management in the state.
MR. BRUCE said with an industry of this importance and functioning
as a part of the state's tourism industry complex, it is important
to maintain the quality image of the guiding experience and ethical
standards for guides and the guiding profession. He stressed the
BGCSB provides an important service in that area.
MR. BRUCE pointed out the other area the BGCSB provides an
important service is in spreading out the guiding effort across the
state's wildlife populations, so in conjunction with the
department's wildlife managers, it is known when a particular
population is over-exploited or is subject to hunting pressure that
it cannot sustain in the long run.
Number 474
REPRESENTATIVE BARNES wondered how frequently the department has
had to go to a Tier 2 hunting system for subsistence.
MR. BRUCE responded the majority of the Tier 2 permits in the state
are in Unit 13 which is near Anchorage and also involves hunters
from Fairbanks. He said there are 7,000 to 8,000 permits issued in
that area for hunting. He noted the area comprises the largest
number of Tier 2 permits issued in the state. He added there are
other Tier 2 hunts and in some cases, involve very small
populations of sheep or goat in which the demand for hunting
exceeds the ability to provide an opportunity for all of the users.
He reiterated the large Tier 2 hunt is in the Anchorage vicinity
and is in effect primarily due to the large population desiring to
hunt in the that area.
CO-CHAIRMAN GREEN asked Mr. Bruce to explain what a Tier 2 hunt is.
MR. BRUCE explained the Tier 2 hunt takes place when the resources
are not available to support a reasonable opportunity for all
resident hunters in the state. The Tier 2 hunt says if a
reasonable opportunity cannot be provided to all people, the hunt
should be prioritized for a certain group of people. He said there
are three criteria applied to that group of people and noted that
the criteria is mentioned in the Alaska National Interest Land
Conservation Act (ANILCA). The criteria includes a record of
historic dependence on the resource, residency near the population
being hunted, and the availability of alternative resources.
MR. BRUCE stated there is an application which people complete, a
point system is ascribed to that application, people are then
ranked according to how they score on the points and then they are
given permits until the point is reached where the permits exceed
the capacity of the resource to support it. For example, if the
department determines that X number of animals can be harvested,
there are 50 people who apply for the Tier 2 hunt and the point
system cuts off at seven, the department goes down from the highest
rank to seven and that is the number of permits awarded.
REPRESENTATIVE BARNES asked how many guides there are under the
Tier 2 system in guide area 13.
MR. BRUCE responded he did not know.
REPRESENTATIVE BARNES asked Mr. Bruce if he was familiar with the
Owsichek decision.
MR. BRUCE said he was generally familiar with the decision but had
not read the decision.
REPRESENTATIVE BARNES stressed the state's constitution clearly
says the fish and game resources belong to all of the people for
their common use. She felt when the Tier 2 system goes into
effect, there is not an availability of that resource for all of
the people. Therefore, what is truly happening is the exclusion of
Alaskans from a resource which belongs to them, not to outside
hunters. She asked how constitutionally that can happen. She
stressed once the Tier 2 system is put into effect, only the people
who qualify for subsistence can hunt in that area.
Number 580
MR. BRUCE said although he is not a constitutional attorney, he
would try to respond to the question. He stated in regard to the
Tier 2 system, the managers and policy makers have tried to fashion
a system that recognizes there are cases where the resources are
not abundant enough to support use for every single individual in
the state who wants to use them. He explained they have tried to
balance the constitutional directive to accomplish that with the
realities of the population and devise a system that allows access
to people on some kind of an objective criteria which treats
Alaskans equally.
REPRESENTATIVE BARNES stressed Alaskans cannot be treated equally
under the criteria of the Tier 2 system. She felt it could be done
if it was managed through the boards of fish and game based on bag
limits and seasons. She said the current system is no less
constitutional than what the state had with the exclusive guide
areas because the department is allowing some Alaskans the
privilege of those resources over others.
CO-CHAIRMAN GREEN clarified the Tier 2 system goes into effect when
there is a limited number of harvest among animals and does not
exclude Alaskans for outsiders but prioritizes within Alaska.
MR. BRUCE responded that is correct. He said one has to be an
Alaskan resident to qualify for a Tier 2 permit.
REPRESENTATIVE BARNES did not disagree with that point but added
that was not her point. She clarified one has to be an Alaskan and
meet the criterion laid out in the statutes and ANILCA. She noted
that part of HB 960 passed in 1978 is still law, as well as part of
the Hickel bill passed during special session. She stressed
because of those laws, as well as ANILCA, the system set up
provides an exclusion of Alaskans over others.
REPRESENTATIVE BARNES pointed out the resources belong to the
people for their common use. She said the legislative body has
delegated management authority to the boards of fish and game on a
sustained yield principle. She stated if those resources cannot be
sustained for all of the people, the constitution has been
violated. She commented she cannot say she does not support
exclusive use of the resources for the rural areas of the state and
on the other hand say she is willing, because it brings in money
for tourism, to allow guides to have a system that the rest of
Alaskans do not have.
Number 686
REPRESENTATIVE OGAN stressed there is no guiding when the Tier 2
system goes into effect. He did not understand how the Tier 2
system had any relevance to the discussion. He stated there are no
exclusive guide areas as they were ruled unconstitutional by the
Supreme Court. He said guides will continue to guide even if the
BGCSB is terminated and furthermore, if the BGCSB is terminated,
anyone could go out and serve as a guide just by buying a guide
license whether that person is qualified or not. He pointed out
that all control of the guiding industry would be lost. He added
that the BGCSB does set up criteria for certain game species that
requires guides.
REPRESENTATIVE OGAN stressed there is no exclusive use. He said
guides are allowed to pick three areas in the state and often when
there is a potential for overharvest, the BGCSB will work with the
guides to solve the problem.
TAPE 95-11, SIDE B
Number 000
CO-CHAIRMAN GREEN felt the committee needed to stay on the Tier 2
issue as it affects whether or not the BGCSB is extended, rather
than debate subsistence.
REPRESENTATIVE BARNES said everyone knows that she believes the
system is unconstitutional. She indicated she will continue to
fight the system until it goes back to the court and is once again
proved to be unconstitutional. She said she cannot believe the
state has a system where some Alaskans cannot hunt and the guiding
industry is using the same animals that cause the Tier 2 system to
go into effect. She stressed that is a cause and effect situation.
She reiterated the guiding industry is taking animals to the
exclusion of other people through bag limits, seasons, etc., and
expressed belief that is what causes Tier 2 to go into effect.
REPRESENTATIVE DAVIES asked Mr. Bruce to explain how the take by
guides is regulated when the Tier 2 system goes into effect.
MR. BRUCE stated when a population of animals is subject to a Tier
2 hunt, guiding is not allowed.
REPRESENTATIVE DAVIES wondered prior to the Tier 2 system going
into effect if there is an anticipation of a decline in the
population affecting guides' ability to hunt.
MR. BRUCE responded there could be some adjustments in bag limits
and seasons which would apply to both people who are engaged in
guided hunts and people who are hunting on their own.
REPRESENTATIVE DAVIES clarified there is an adjustment of the take
prior to the Tier 2 system beginning which applies to everyone.
MR. BRUCE replied that is correct. He explained the adjustment is
through seasons, bag limits, and means and methods set by the Board
of Game.
Number 047
CO-CHAIRMAN GREEN asked if game area number 13 was to show a
decline in the number of harvestable animals but that number was
not to the point of putting the Tier 2 system into effect, would
ADF&G reduce the number on bag limits to help preserve the
population.
MR. BRUCE stated that is exactly the approach the wildlife managers
take. The wildlife managers try to assess the populations and
trends in the animals and what the harvestable surplus is. If that
harvestable surplus shrinks, the managers have to adjust the take.
Normally the adjustment is made in the total number of animals
taken and in the bag limits in the area. He noted the area is
closed when the animals are taken, sometimes by emergency order.
CO-CHAIRMAN GREEN asked if there is a direct relationship between
guided hunting in an area and its susceptibility to going to the
Tier 2 system.
MR. BRUCE stated he did not know, but would get the answer.
REPRESENTATIVE DAVIES observed in regard to the constitutional
issue raised, there are often situations where different provisions
of the constitution appear to conflict with one another and
decisions by the Supreme Court are needed to balance those
conflicts. He said the issue being discussed is a classic
situation where Article 8 provides general access for all citizens
and section 12 seeds absolute authority over native American
affairs to the Congress. He stated those things are apparently in
conflict and that conflict is the ANILCA provisions derived from a
constitutional provision in the state's constitution as well.
Therefore, it is not a conflict between Congress and the state's
constitution but rather a conflict between two provisions in the
state's constitution. He stressed that is what needs to be
balanced.
REPRESENTATIVE BARNES said in the McDowell case, the court did not
find a conflict between those two sections of the constitution and
it was determined that the resources belong to all of the people
for a common use. She added that ANILCA was not enforced in the
state of Alaska and that is why there is the debate over a
constitutional amendment.
REPRESENTATIVE BARNES wondered where guides go when they are
confronted with a Tier 2 system being put into effect.
MR. BRUCE responded the guides go to one of the other areas they
are registered in. He did not know if the BGCSB allows a guide to
add another area (a fourth area) when an area they are registered
in becomes unavailable for guiding because of a Tier 2 hunt.
Number 110
REPRESENTATIVE OGAN said currently a point system is being reviewed
by the Attorney General's Office. He pointed out that every
regulation the BGCSB creates or changes is subject to intense
scrutiny by the Attorney General's Office because of constitutional
questions. He added that the Board of Game does make adjustments
in certain areas.
CO-CHAIRMAN GREEN asked Representative Ogan if there would be more
of a problem without the BGCSB.
REPRESENTATIVE OGAN answered absolutely. He said there would be no
control and any guide could hunt in any area. He stated there
would also be an enforcement problem. Currently, the fish and
wildlife protection officers know which guides are registered to
hunt and in what areas.
REPRESENTATIVE MACLEAN stated within the analysis of the bill, it
says the BGCSB terminated June 1994. She wondered what has
happened since that time.
CO-CHAIRMAN GREEN responded there is a one year wind down period
which is what is happening now.
REPRESENTATIVE BARNES agreed there are more controls by having the
BGCSB. However, she disputed whether or not it is constitutional.
Number 155
CO-CHAIRMAN GREEN clarified that Representative Barnes' concern is
not with the BGCSB but rather with guiding in general.
REPRESENTATIVE BARNES said it is unconstitutional to establish
guide areas in any shape, form, or fashion under the state's
constitution. She felt the Board of Game and the Board of Fish,
which the legislature delegated the management responsibility under
the sustained yield principle, have the responsibility to manage
those areas and any use which is ongoing in those areas.
REPRESENTATIVE AUSTERMAN stated before the Owsichek decision, the
guide areas which were exclusive were just that...a family which
had been in Kodiak for 40 year had their sons taking over the
operations and no one else was allowed in the area to guide
hunters. With the Owsichek decision, the exclusive areas were
totally eliminated and on a renewal basis, one can apply for a
guided area and there is no exclusivity. He expressed confusion on
the constitutionality of the issue because any resident can hunt in
those guide registration areas.
REPRESENTATIVE BARNES stated when the state goes to a Tier 2
system, the resource is limited to Alaskans and guides are
harvesting these resources.
REPRESENTATIVE AUSTERMAN pointed out that Alaskans are harvesting
the animals at the same time.
REPRESENTATIVE BARNES stressed that out-of-state people are more
capable, through guides, of taking the resources than Alaskans.
She stated because of all the problems for Alaskans and the
division it has caused among the state's people, she cannot find
that the use of big game guides is any less constitutional than the
original HB 960 which she introduced 17 years ago.
REPRESENTATIVE DAVIES felt the issue before the committee is not
whether or not there are going to be commercial guided hunts. He
stressed the issue is whether or not there is going to be any type
of regulation of that activity. He said it was very clear that
given that activity has occurred, does occur, and is going to
occur, the state is better off controlling that activity to some
extent. He observed in looking at area 13 for example, if the
number of guides hunting in that area is limited, the amount of
game will be improved for resident hunters.
REPRESENTATIVE DAVIES agreed that when nonresident hunters take a
large portion of the resource, it reduces what is available for
Alaskans but he felt that is another issue for the committee to
decide. He commented if the BGCSB does not regulate guides, then
those functions would probably fall to the fish and game boards who
already have plenty on their plate. He felt it was important to
continue the regulation of the industry.
REPRESENTATIVE AUSTERMAN asked Representative Barnes if the BGCSB
is not renewed, what is her recommendation on what the state should
do in regard to regulating out-of-state hunters, ensuring their
safety with good registered guides.
REPRESENTATIVE BARNES responded it was obvious she will not support
to renew the BGCSB. She reiterated the legislature has delegated
its responsibility for management of the resources to the Board of
Fisheries and Board of Game. Therefore, those boards have to
manage those resources for all of the people of Alaska at the same
time.
REPRESENTATIVE AUSTERMAN clarified she felt the legislature should
not renew the BGCSB and turn the regulating over to the Boards of
Fisheries and Game.
REPRESENTATIVE BARNES answered that is correct.
Number 257
JOE CLUTCH, PRESIDENT, ALASKA GUIDED OUTFITTERS ASSOCIATION, KING
SALMON, testified via teleconference and stated there seems to be
some confusion about what the functions and charges of each board
is. He said the extension of the BGCSB is essential for a number
of reasons. First, the extension is important for the sake of the
wildlife resources of Alaska that directly benefit from a properly
regulated guiding industry. He stated the BGCSB is not a remake of
the pre-Owsichek Guide Board. Rather, the BGCSB was specifically
structured in a way to prevent anything related to the pre-Owsichek
system from being reimplemented.
MR. CLUTCH explained the primary objective of the BGCSB is to
ensure that the wildlife resources are accessed and utilized in a
rational and conservation oriented manner. He said one of the
functions of the area system is to provide for a spacial
distribution of effort, meaning there are no high concentrations
and an unlimited number of guides operating in one given area,
depleting the resource and then moving on to another area. In
situations such as that, the result is conflicts in the field and
conflicts with other users. He added that the area system allows
the department and other guides to measure and obtain a predictable
level of activity, instead of having high grading and surges in
activity which depletes the resource.
MR. CLUTCH told committee members there is an operations plan at
the beginning of each season. Each guide receives this plan, which
indicates the number of species to be hunted and the number of
clients by species within the area. The department can tabulate
the operations plans to determine if a potential for an overharvest
exists. He stressed the objective is to avoid Tier 2 situations.
He said there is no guiding when there is a Tier 2 situation and
added it would be against the interest of anybody involved in the
guiding or transporting industry to see a Tier 2 situation exist.
He gave an example of how the system worked in Southeast this year.
Number 322
MR. CLUTCH said the regional biologist in Southeast tabulated the
number of prospective goat hunters by the registrants in areas of
Southeast and determined a potential for an overharvest existed.
He called a meeting of all the people registered for those
respective areas, worked out a plan, the season continued and
everyone was able to participate. He stated the area system also
benefits enforcement efforts. Each of the guides registered in an
area has to list their base camp, their respective spike camps,
their employees, the locations of the camps, the dates of
operation, etc. This reduces conflicts in the field and ensures
that only the credible, law-abiding guides are able to operate.
MR. CLUTCH stated the extension of the BGCSB is also important for
the general public interest, to ensure that commercial service
providers do so in a responsible manner. He said it also follows
that a regulatory mechanism for commercial entities involved in the
taking of game serves the interest of the people who do not choose
to use a guide or a transporter. Therefore, the interest of the
non-hunting public is also served by the BGCSB. He added that many
people suggest the Board of Game alone can and should regulate the
taking of game. He does not argue with that suggestion. He
pointed out the primary function of the Board of Game is to
allocate the resources by setting seasons and bag limits. This
function does not include, however, the setting of standards by
which commercial activities are conducted. The Board of Game will
reduce a given user group's allocation if there is a biological
justification to do so.
MR. CLUTCH noted that nonresident allocations are the first to be
eliminated when the resource is in short supply. He added that the
nonresident allocations are the base of the commercial services
industry. Unregulated access by commercial entities results in the
depletion of the allocations on which these industries depend. He
stressed the BGCSB and the Board of Game serve separate but
complimentary functions.
Number 385
MR. CLUTCH said the next rationale for supporting the continuation
of the BGCSB is the economic argument. Without this regulatory
board which ensures the rational utilization of the resource, the
allocation on which the commercial entities depend will be lost.
He reiterated that the commercial services industry generates
between $80 million and $100 million per year directly to the state
and is approximately ten to twelve percent of the take of
harvestable game animals. He added that nonresidents pay 75
percent of the annual budget of the Division of Wildlife
Conservation from the sale of nonresident licenses and tags.
MR. CLUTCH stated to date, the BGCSB has been able to operate in a
fiscally responsible and cost effective manner and has either
broken even or generated revenues in excess of expenses, which is
the reason the board has been able to reduce the guiding license
fees in the upcoming regulatory cycle. He said the committee needs
to understand that if the BGCSB is not extended, it will be another
relinquishment of the state's responsibility to the federal
government. All of the federal land managers (U.S. Fish and
Wildlife, the U.S. Forest Service and the National Park Service)
have established a guide area system, which is a much more limited
system than the state's system. He pointed out the federal land
managers limit specific federal areas by a competitive prospective
process with one guide per area and have very restrictive
conditions relative to those guide area permits. He explained
without the state board to regulate guiding activities, the federal
managers will undertake regulating guiding activities.
Number 426
MR. CLUTCH felt there was a lot of confusion in regard to the issue
of constitutionality and what the new system does and how it
relates to the Owsichek ruling. He said nothing in the current
system resembles the pre-Owsichek system. Anyone who holds a
current guide license who meets the requirements set forth by the
BGCSB is eligible to register in up to three areas of their choice.
He stressed there is nothing exclusive about the system. He noted
that if any members of the current guiding community have a problem
with this system, it would be that the system is not able to
restrict the number of registrants to a desired level on state
land. He noted the federal government does not allow an unlimited
number of guides to operate.
MR. CLUTCH reiterated the existing registration system is not
exclusive in any way. Any number of guides can register for up to
three areas and seniority plays no part of the system. Newcomers
are on exactly the same footing as established guides. He added
there is no ability to transfer or sell these areas. He explained
that in the event an area becomes closed due to changes in game
populations or change of seasons, registrants have the option to
cancel a registration and find another area to register for.
REPRESENTATIVE BARNES stressed that she is not confused. She knows
exactly what he is talking about and knows exactly what she was
talking about. She noted that Mr. Clutch indicated there was
nothing exclusive about the system. She wondered what the criteria
is for becoming a guide and how does one get to be a guide if there
is not something controllable about it.
MR. CLUTCH responded an individual has to have served as an
assistant guide for two years, submit an application to the
Department of Commerce & Economic Development, take an examination,
pass the registered guides test and receive a guide license, and
pass an examination for certification within specific game
management units within the state. He stated the examinations were
designed by an independent testing firm and are fair and broad-
based.
CO-CHAIRMAN GREEN noted the ADF&G had indicated that having the
BGCSB is an assistance and if the board was terminated, either a
chaotic situation would occur such as prior to the board or ADF&G
would need to add staff to do what the board is currently doing at
a cost to the general fund. He recalled an interesting remark as
to whether out-of-state hunters have an impact to the point of
creating a Tier 2 situation which then gets the state into a
potential legal situation. He felt the issue is one of whether or
not the BGCSB in its existence, with a continuation, would assist
in the game management and is not directed at whether or not there
may be a possible infringement upon a legal issue of preference to
subsistence users.
REPRESENTATIVE OGAN made a MOTION to MOVE HB 102 out of committee
with accompanying fiscal note with individual recommendations.
REPRESENTATIVE MACLEAN OBJECTED.
CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of
the motion were Representatives Davies, Ogan, Nicholia, Williams,
Austerman, and Green. Voting against the motion were
Representatives MacLean and Barnes. The MOTION PASSED 6-2.
ADJOURNMENT
There being no further business to come before the House Resources
Committee, Co-Chairman Green adjourned the meeting at 9:29 a.m.
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