02/02/2005 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB76 | |
| HB107 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 76 | TELECONFERENCED | |
| *+ | HB 107 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
February 2, 2005
1:11 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Co-Chair
Representative Ralph Samuels, Co-Chair
Representative Jim Elkins
Representative Carl Gatto
Representative Gabrielle LeDoux
Representative Kurt Olson
Representative Paul Seaton
Representative Harry Crawford (via teleconference)
Representative Mary Kapsner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 76
"An Act relating to the Big Game Commercial Services Board and
to the regulation of big game hunting services and
transportation services; and providing for an effective date."
- MOVED HB 76 OUT OF COMMITTEE
HOUSE BILL NO. 107
"An Act providing for the award of full actual attorney fees and
costs to a person aggrieved by unlawful obstruction or hindrance
of hunting, fishing, or viewing of fish or game; amending Rules
79 and 82, Alaska Rules of Civil Procedure; and amending Rule
508, Alaska Rules of Appellate Procedure."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 76
SHORT TITLE: BIG GAME SERVICES & COMM. SERVICES BD
SPONSOR: REPRESENTATIVE SAMUELS
01/18/05 (H) READ THE FIRST TIME - REFERRALS
01/18/05 (H) RES, FIN
02/02/05 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 107
SHORT TITLE: ATTY FEES: HUNTING/FISHING INTERFERENCE
SPONSOR: REPRESENTATIVE RAMRAS
01/24/05 (H) READ THE FIRST TIME - REFERRALS
01/24/05 (H) RES, JUD
02/02/05 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
HENRY WEBB, Staff
to Representative Ralph Samuels
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 76 on behalf of Representative
Samuels, sponsor.
PAT DAVIDSON, Legislative Auditor
Legislative Audit Division
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the purpose and outcome of an
audit regarding issues covered in HB 76.
RICK URION, Director
Division of Occupational Licensing
Department of Commerce, Community, & Economic Development
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 76.
PAUL JOHNSON, Guide
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 76.
BOBBY FITHIAN, Executive Director
Alaska Professional Hunters Association
Lower Tonsina, Alaska
POSITION STATEMENT: Testified in support of HB 76.
EMORY CHUCK WHEELER, Guide
Nome, Alaska
POSITION STATEMENT: Testified that HB 76 is an infringement on
the guiding industry; questioned whether there would be money
for enforcement.
MATT ROBUS, Director
Division of Wildlife Conservation
Alaska Department of Fish & Game
Juneau, Alaska
POSITION STATEMENT: Testified in favor of HB 76.
ROB HARDY, Guide
Nelchina Basin, Alaska
POSITION STATEMENT: Testified that HB 76 did not go far enough
in reducing user conflicts and in advancing user fees to help
fund ADF&G.
JIM POUND, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 107 on behalf of Representative
Ramras, sponsor.
LANCE NELSON, Senior Assistance Attorney General
Natural Resources Section
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Recommended text changes to HB 107.
JENNIFER YUHAS, Executive Director
Alaska Outdoor Council
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 107.
ACTION NARRATIVE
CO-CHAIR JAY RAMRAS called the House Resources Standing
Committee meeting to order at 1:12:52 PM. Representatives
LeDoux, Elkins, Crawford (via teleconference), Ramras, Samuels,
Seaton, Olson, and Gatto were present at the call to order.
Representative Kapsner arrived as the meeting was in progress.
HB 76-BIG GAME SERVICES & COMM. SERVICES BD
CO-CHAIR RAMRAS announced that the first order of business would
be HOUSE BILL NO. 76 "An Act relating to the Big Game Commercial
Services Board and to the regulation of big game hunting
services and transportation services; and providing for an
effective date."
1:13:38 PM
HENRY WEBB, Staff to Representative Ralph Samuels, clarified
that HB 76 re-establishes the sunsetted Big Game Commercial
Services Board which oversaw the professional hunting and
transporting industry. Functions of this board are currently in
the Division of Occupational Licensing. When the board was
allowed to sunset in the early 1990s, the powers of the former
board were watered down. Mr. Webb said that this bill is
designed to "put some backbone back" into the oversight of the
professional hunting industry. An audit report in 2003 and a
request from the Board of Game were the incentives for this
legislation.
1:15:17 PM
MR. WEBB stated that an identical bill died in committee last
year. The re-created board will be made up of two licensed
guides, two licensed transporters, one member selected by the
Board of Game, one representing private landholders, and one
representing the public. He said the board will be able to
establish a code of ethics. Violations of federal law will come
under oversight of the board, and the board will be allowed to
implement training courses for assistant guides. The bill also
raises civil penalties from $1,000 to $5,000, and it requires
guides and transporters to obtain permission before entering
private, state, or federal land to conduct business.
1:17:22 PM
MR. WEBB explained that guides will be limited to three guide-
use areas within a calendar year, and the board is given the
authority to amend the guide-use areas, allowing a guide
additional areas if the areas are part of a predator control
program. He said the board will also be allowed to adopt
transporter-use areas.
1:17:59 PM
REPRESENTATIVE GATTO asked if HB 76 is the same bill from 2003.
MR. WEBB answered yes.
REPRESENTATIVE LEDOUX asked what the rationale is for only three
guide areas.
MR. WEBB said it keeps people from switching around during the
year.
REPRESENTATIVE ELKINS inquired if a guide selected three areas
would the areas be exclusive to that guide.
MR. WEBB responded that guides would not be able to move out of
selected areas but they would not be granted exclusive rights.
REPRESENTATIVE LEDOUX asked why that is important.
MR. WEBB said he would defer to the ADF&G. He added that many
of the provisions in the bill have been worked out in detail by
the department, the Division of Occupational Licensing, the
Department of Public Safety, the Board of Game, and the guiding
industry.
1:20:54 PM
REPRESENTATIVE SEATON asked if the $5,000 fine is in line with
civil penalties that other boards have the authority to impose.
MR. WEBB deferred the question to the Department of Occupational
Licensing.
REPRESENTATIVE OLSON expressed that the transporter section has
loose language, and he wondered if the reporting will be
mandatory for transporters.
CO-CHAIR SAMUELS said it will be mandatory, and that the report
is one of the points of the legislation.
REPRESENTATIVE SEATON wanted a definition of a transporter and
if the language excludes people who transport hunters as a favor
or for shared fuel costs.
1:23:52 PM
MR. WEBB referred Representative Seaton to the definitions
beginning on page 20 of the bill.
CO-CHAIR SAMUELS said persons taking friends out and air taxis
are not regulated under this legislation.
MR. WEBB pointed out that line 17 defines an air taxi.
1:25:43 PM
REPRESENTATIVE SEATON wanted re-assurance that friends or
someone who is only compensated for fuel won't be considered a
transporter.
CO-CHAIR SAMUELS said that the definition of a transporter is
the same today as it is in the bill, and he added that "if I
take you out in my cub to go caribou hunting and we split the
cost of the gas, that is certainly not the intent" of the bill.
1:27:13 PM
PAT DAVIDSON, Legislative Auditor, Legislative Audit Division,
told the committee that the purpose of the division's audit was
threefold: 1) to determine the impact of not having a
professional guide and transporter licensing board on the
enforcement of guiding statutes, 2) to assess the
appropriateness of the current fine limit, and 3) to assess the
adequacy of the current reporting requirements for guides and
transporters. She reported that current oversight is done by
various land managers, such as the state, National Park Service
(NPS), United States Fish and Wildlife Service (FWS), United
States Forest Service (USFS), and Bureau of Land Management
(BLM). All agencies have expressed a desire for a centralized
regulatory board.
MS. DAVIDSON said client surveys showed that there are consumer
protection issues with the industry. The audit division
concluded that statutory changes to include best practices are
warranted for consumer protection and safety. She said a re-
established board would provide a more dynamic regulatory
regime, and it would enhance professionalism in the industry.
She recommended that a new board create competency requirements
for licensure. Regarding fines, she said, the research found
that they were once set at $30,000, and currently they are
limited to $1,000. Big game hunts are expensive, she said, and
the financial reward for the violation does not compare well to
the fine if one gets caught.
1:31:54 PM
RICK URION, Director, Division of Occupational Licensing,
Department of Commerce, Community, & Economic Development. The
bill is a good start for addressing the many problems in the
commercial hunting industry. But, he said, the bill is lacking
in enforcement, and he would like to work with the legislature
as the bill moves along.
1:33:25 PM
REPRESENTATIVE LEDOUX asked why the legislation limits guides to
three hunting units.
MR. URION responded that because wildlife is a limited resource,
restricting hunters to three areas allows some control.
Establishing the units before the hunts occur helps regulators
know where people are and improves the quality of the hunt
because guides can learn where other guides are.
REPRESENTATIVE ELKINS asked if the size of the fine is a
deterrent to violations.
MR. URION said it depends on the "size of the person's wallet."
Other fines are considerably higher, he said. A realtor was
recently fined $25,000.
REPRESENTATIVE SEATON requested a definition of transportation
service, again wondering if friends can take friends hunting
without being regulated.
1:36:19 PM
MR. URION said "we will make sure" that will not happen.
1:36:45 PM
PAUL JOHNSON, Guide, told the committee that guiding is a big
industry economically, and it is particularly important in rural
Alaska. He stressed that "it is time to move forward" on the
bill. He explained how the limit of three hunting areas came to
be in the 1970's, and that it is a very carefully determined
"piece of the puzzle." He said this bill was put together with
a task force, and it doesn't change the definition of who is a
transporter. This has been a long process, he said, and we need
to move forward. "It is the best thing for the residents of the
state," he opined.
1:40:15 PM
REPRESENTATIVE GATTO asked about the bill's history.
MR. JOHNSON said that in different years the bill got held up in
different places in the legislature.
BOBBY FITHIAN, Executive Director, Alaska Professional Hunters
Association, Lower Tonsina, Alaska, has owned a family guiding
business for twenty years. He stated that HB 76 is about giving
proper stewardship to one of Alaska's earliest industries. He
added that standards are weaker than at any time in history, and
integrity has diminished. He stated that winners in the
existing industry are the users who care little for wildlife and
are only in the business for the money. He and his wife guide
in order to share Alaska's wildlife, but at this point they
don't see it as a viable business to transfer to their children.
Mr. Fithian believes the bill is a significant start, and he
supports it.
1:44:36 PM
CO-CHAIR SAMUELS asked how much a brown bear hunt costs.
MR. FITHIAN answered that industry standards range from $9,000
to $16,000.
REPRESENTATIVE GATTO asked Mr. Fithian why he can't pass his
business to his son.
MR. FITHIAN responded that his three sons have been guides, but
they recognize that there is no economic sustainability in the
industry in the way it is currently being managed in the state.
REPRESENTATIVE GATTO said he was concerned that there was a
legal block to prevent parents from passing on their business to
their offspring, but "what you're saying is it is just not
economic for a son to assume the work you are doing--and
survive."
MR. FITHIAN said "the legal block is stewardship."
CO-CHAIR RAMRAS asked how the bill makes the business
sustainable and viable to pass on to the next generation.
1:47:55 PM
MR. FITHIAN discussed the history of the guiding industry. He
said there is no accountability on certain federally and
privately managed lands and that licensing standards have
relaxed. "One operator, many times, is using nine, or even
twelve different" areas, he reported, and there is no limit to
the amount of guides for the hunting units, creating situations
where guides are "working over the top" of others. He said this
diminishes the clients' experiences, and over time they will
"start taking their dollars some place else other than Alaska."
REPRESENTATIVE SEATON referred to written testimony from another
guide requested that subsection (f) be taken out because he
thinks the predator control allowance will cause problems.
Representative Seaton asked how critical that provision is to
Mr. Fithian.
1:50:37 PM
MR. FITHIAN replied that it is a complex question. He said that
the bears that are sought for predator control are not the ones
sought by non-resident hunters because they are often small
bears, nocturnal bears, or sows with cubs. The additional
hunting area allowed by the provision "does not create a big
horizon for us." He said that "those of us that have tried" to
find the bears "that are supposedly killing these animals--we're
not finding them." He added that for guides who are given these
extra areas, "it isn't going to be a winning economic boon." He
warned that he thought the provision could become an abuse of
the three-area system.
1:52:18 PM
REPRESENTATIVE SEATON asked if the provision will be
ineffective.
MR. FITHIAN answered that "we have yet to see a benefit of
additional guides selecting an intensive management area." He
gave an example where guides that have hunted in a now-
designated intensive management area are having difficulty
finding the number of bears that they were able to find before
the area was listed as such. He said that ADF&G might help
answer Representative Seaton's question.
1:53:49 PM
CO-CHAIR SAMUELS said that the intent of the provision is to
allow a guide to operate in one of the intensive management
areas without having to give up the three areas the guide has
already selected.
REPRESENTATIVE LEDOUX asked if any provision in the bill
protected popular areas from being over selected.
1:55:55 PM
MR. FITHIAN said there currently are exclusive guide-use areas
in NPS preserves, FWS refuges, and on some USFS lands, but it is
a "free-for-all" on state lands. He said there is one place in
the current bill where the board could address that. DNR could
work with the board and develop an allocation system on state
lands, but the bill doesn't require the board to do that.
1:57:35 PM
EMORY CHUCK WHEELER, Guide, Nome, sees HB 76 as an "enforcement
bill only, unfortunately." He added that the new board should
not set up a code of ethics because the Alaska Professional
Hunters Association already has one. He believes that there are
a "few bad apples," but he sees HB 76 as an infringement on the
industry. He said the state will not get the money to enforce
it. He said "all the brown shirts are now blue shirts," and
their focus is on domestic violence and drugs. "We don't have
any law enforcement for wildlife anymore," he said, and that
there is no money in the legislation for enforcement.
2:00:28 PM
DICK ROHRER, Guide, Kodiak, encouraged the committee to pass the
bill out of committee today. He said he has been a guide out of
Kodiak for a long time.
2:01:35 PM
MATT ROBUS, Director, Division of Wildlife Conservation, Alaska
Department of Fish & Game (ADF&G), said the details of this bill
have been worked on by the legislature, ADF&G, the Division of
Occupational Licensing, the Department of Public Safety, and,
perhaps, DNR and that the Alaska Department of Fish & Game and
the Board of Game are supportive. He said that since the
sunsetting of the previous board there have been user conflicts.
The Board of Game has had trouble solving the complicated
problems, he said, and creating the new board would allow the
two boards to specialize in their areas of expertise and form a
cooperative system.
2:05:13 PM
REPRESENTATIVE SEATON asked if Mr. Robus thought that the
additional guide-use areas allowed under the predator control
provision will be used, and if ADF&G wants it in the bill.
MR. ROBUS responded that the provision was one of several
scenarios for reducing predators in areas where prey densities
are depressed. The Board of Game liberalized brown bear hunting
with a year-round season and liberal bag limits, with little, if
any, effect on the ungulate herds. The trick, he said, is to
attract more hunters to areas where bears are not particularly
desired by them, and this incentive of a fourth area might help.
He said there is no track record of it working, but he believes
ADF&G would want to keep the provision in the bill.
2:08:02 PM
REPRESENTATIVE SEATON asked about aerial wolf hunting as related
to this provision.
MR. ROBUS answered that such programs are not termed "hunting."
The department does it through a permit system whereby people
"become agents of the state to conduct control programs," so it
would be unlikely that the department would issue permits for
guided wolf hunts. He said that the economics of a bear hunt
are higher than a wolf hunt and would be more successful.
REPRESENTATIVE SEATON asked if the provision would allow more
than four areas for a guide.
MR. ROBUS said he didn't know.
CO-CHAIR RAMRAS asked if the former commercial guide services
board was an effective tool when it did operate.
MR. ROBUS believed it was.
2:10:28 PM
REPRESENTATIVE GATTO asked Mr. Robus if he said that a predator
control hunter was acting as an agent for the state.
MR. ROBUS said the department does not consider predator control
to be hunting, so it is not regulated as hunting. He said it is
a permit system which can be carefully controlled. The agents
keep animals they take, but it is not a hunt. The pelt is the
only compensation the agent receives.
2:11:39 PM
CO-CHAIR RAMRAS asked if someone would make a motion that HB 76
move from House Resources.
REPRESENTATIVE SEATON asked to have some committee discussion
first, and then expressed his desire to make sure the written
testimony gets put into the record. He also wanted
clarification of the difference between a normal guided hunt
under HB 76 and a permitted predator control operation.
MR. ROBUS explained that the aerial wolf control programs are
conducted through a permit operation that is separate from HB
76. This bill would allow a guide into an extra area if he or
she wanted to take a client into an intensive management area
for a normal hunt. This would help bring more hunting pressure
on the predators.
2:14:31 PM
ROB HARDY, Guide, Nelchina Basin, said he was a permitted gunner
in the wolf control program, and he expressed his concern that
the legislation does not do anything for subsistence users or to
reduce conflict between users, or to reduce the "unprecedented
expansion, congestion, and impact that the industry is
having..." He added that "it also does virtually nothing to
address dwindling resources and to slow the overwhelming growth
of the industry." He recommended that the committee adopt
alternative legislation or amendments to address these issues
and to add "trophy fees" to provide additional funding to ADF&G
which could be used for the development and enhancement of the
resource. He believes the industry should pay for the privilege
to access animals, and he proposed a user fee for each animal
that is harvested that would be equal to or greater than the sum
of the individual non-resident big game tag...
CO-CHAIR RAMRAS interjected and told Mr. Hardy that the
committee had a copy of his written testimony and that
Representative Seaton was making sure it got into the record.
2:18:14 PM
CO-CHAIR SAMUELS said that this bill does not do much, but it is
a first step to fix the industry's problems. The bill gives
authorities to a board that can concentrate on the issues that
Mr. Hardy brought up. He said it is important for HB 76 to move
forward so that the board it creates can move forward with the
issues facing the industry.
2:20:00 PM
CO-CHAIR RAMRAS agreed that work will get done after "hopefully"
re-establishing a big game board. Co-Chair Ramras
unsuccessfully attempted to contact Mark Wagner by
teleconference, and then closed public comment.
REPRESENTATIVE SEATON clarified that his question regarding
transporters was answered.
2:21:27 PM
REPRESENTATIVE ELKINS moved to report HB 76 out of committee
with individual recommendations and the accompanying fiscal
notes.
2:22:00 PM
There being no objection, HB 76 [24-LS0332\G] was reported from
the House Resources Standing Committee.
The committee took an at-ease from 2:22 PM to 2:28 PM.
HB 107-ATTY FEES: HUNTING/FISHING INTERFERENCE
CO-CHAIR RAMRAS announced that the next order of business would
be HOUSE BILL NO. 107 "An Act providing for the award of full
actual attorney fees and costs to a person aggrieved by unlawful
obstruction or hindrance of hunting, fishing, or viewing of fish
or game; amending Rules 79 and 82, Alaska Rules of Civil
Procedure; and amending Rule 508, Alaska Rules of Appellate
Procedure."
2:29:34 PM
JIM POUND, Staff of Representative Ramras, stated that HB 107
was created to address a growing concern that people have been
obstructed from hunting, trapping, and wildlife viewing. He
said that when an obstruction takes place under current law an
offender can be charged in criminal court, and he or she can
also be charged in a civil case by an aggrieved person. He
stated that juries have awarded as much as $200,000 to the
aggrieved, but under the current system, full attorney fees and
costs are not necessarily awarded. Mr. Pound opined that this
has a "chilling effect" on people taking their cases to a civil
court because they might end up paying their own attorney fees.
2:31:13 PM
REPRESENTATIVE SEATON asked if there are other circumstances in
which all attorney fees are mandated to be paid.
MR. POUND responded that if a case goes beyond superior court,
there may be a full award of attorney fees for the appeal.
REPRESENTATIVE SEATON clarified his question, and pointed out
that this is a single statute which overrides Rule 82 of the
Alaska Rules of Civil Procedure and wanted to know if it
occurred elsewhere in the law.
MR. POUND said he is not sure, and he suspects Rule 82 was
created because "there was a point in time when we were looking
at attorney fees that may have been going beyond the call of
what was considered reasonable, and this language may have been
actually put into the court rules by the legislature to help cut
that down, and I would suspect in certain civil cases that
attorney fees may mount to a level of where they might be
considered unreasonable. I don't believe in this particular
instance of hunting, fishing, or trapping we're going to be
dealing with that type of situation."
2:33:31 PM
REPRESENTATIVE ELKINS asked if a person was "calling up a moose"
and another hunter shot the moose, would that be considered
obstruction under this bill.
MR. POUND responded that this "has to do with people clearing
trap lines" and people walking in front of an animal to protect
it from being shot, "that is how the determination of
obstruction would be. Same thing with wildlife viewing where
people will try to chase off the wildlife..."
REPRESENTATIVE ELKINS said it happened in Fairbanks, "the guy
went to court and spent a lot of money... He ended up being
prosecuted by the state over it because he got a little bit
excited, but he won the case against the state."
MR. POUND said that that case established a precedent for what
is and is not an obstruction.
REPRESENTATIVE LEDOUX asked how big of a problem obstruction is.
MR. POUND answered that it does not occur often. He said there
are people with "radical attitudes" who have decided they are
going to manage fish and game, and they are doing it through
protest. He said one concern is that a person will get shot.
He cited a theoretical example of a tourist spending money to
watch wildlife and the tourist is hindered by another person.
He said the tourist could go through a criminal process, but "to
take it to civil, it's going to cost money out of [his]
individual pocket to do so. And it is something that is
starting to grow."
2:37:04 PM
CO-CHAIR RAMRAS asked if it is fair to say that people
practicing civil disobedience in the wild may harm themselves.
MR. POUND said "there's always a possibility when you get out
into the wild of being harmed." He added that the bill gives
the individual who is being obstructed another avenue to gain
full compensation from the loss.
REPRESENTATIVE CRAWFORD said a few years ago he and a hunting
partner were moose hunting and his partner shot a moose, and it
walked off and died in the someone's private yard. The
landowner would not let them retrieve the moose. Would that be
obstruction under this bill? Representative Crawford asked.
MR. POUND said he would yield that question to an attorney.
2:39:06 PM
LANCE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Office of the Attorney General, Anchorage,
said he wanted to discuss Section 2 and Section 3 of HB 107
which address two court rule amendments: Rules 79 and 82. He
said the Department of Law doesn't believe those sections are
necessary for this bill because "Section 1 provisions are a
substitute rather than procedural and thus we believe [are]
within the independent power of the legislature." He said Rule
82 begins by saying "except as otherwise provided by the law."
So it would not require a rule change. He said that the "two
thirds vote requirement" of Article IV of the state constitution
would not apply.
2:41:51 PM
CO-CHAIR RAMRAS asked if Section 2 and Section 3 are
unnecessary.
MR. NELSON replied in the affirmative.
REPRESENTATIVE SEATON asked if getting attorney fees without any
reasonable standard appears in other sections of the law.
MR. NELSON said there is a "common law provision by the supreme
court" to award full cost of attorney fees in cases brought by a
public interest litigant who prevails in an action against the
state. He said this would "probably" be applied similarly.
2:42:55 PM
REPRESENTATIVE SEATON asked if language regarding reasonableness
of attorney fees is not applicable for HB 107 as well as for
public interest litigation.
MR. NELSON answered that trial courts believe they have the
authority to review the attorney fees claims of successful
litigants and eliminate fees that aren't substantiated. "I
would predict that Section 1 provisions would be applied the
same way--that completely unreasonable or undocumented or
unsubstantiated claims under HB 107" would be questioned and
reviewed. But, he added, generally the courts have been very
generous.
2:44:46 PM
JENNIFER YUHAS, Executive Director, Alaska Outdoor Council,
expressed her support for the legislation. She stated that
current statute does not guarantee a citizen will be awarded
attorney fees, and this bill will bring about a necessary
correction to an oversight. She said obstruction cases are
rare, but this legislation would be a deterrent "to those
wishing to obstruct the lawful use of fish and game resources."
She asked for speedy passage of the bill. She added that a
representative of the Alaska Wildlife Conservation Association
asked her to relate his support of HB 107.
2:46:34 PM
CO-CHAIR RAMRAS closed public testimony.
REPRESENTATIVE LEDOUX said she supports the bill but wondered if
it would be fair to provide attorney fees to whoever is the
winner of the lawsuit to protect against frivolous lawsuits.
2:47:59 PM
REPRESENTATIVE LEDOUX said she would like to offer that as a
conceptual amendment.
MR. POUND said "the passage of who receives what is normally
handled by the courts." Rule 508 has to do with affirmation of
judgment, and he read: "In all cases of affirmance of a judgment
or any order or decision of the superior court, costs shall be
allowed to the appellee or respondent unless otherwise ordered
by the court." Mr. Pound said that the awarding of fees is
handled through the existing court rules.
REPRESENTATIVE LEDOUX understood that the awarding of fees is
normally subject to Rule 82 which also allows for attorney fees
for a defendant, and, she said, Rule 82 allows for payment of
partial attorney fees--they are not normally actual fees unless
the statute would provide for actual attorney fees.
MR. POUND stated that the statute would give actual attorney
fees and costs, and he added that Rule 82 specifically states
that the award is for the prevailing party.
REPRESENTATIVE SEATON said Mr. Nelson told the committee that it
is not a procedural question, which would be covered by Rule 82.
He said the bill is establishing a "substantive provision" that
actual full attorney fees would be awarded and only to the
person aggrieved of the violation. Representative Seaton
agreed with Representative LeDoux because Rule 82 will no longer
apply. He said the bill needs to be balanced.
REPRESENTATIVE LEDOUX said she read the bill to say that the
plaintiff can get full attorney fees, and the defendant would be
subject to Rule 82.
2:52:21 PM
REPRESENTATIVE SEATON pointed out that HB 107 overrides
reasonableness in statute, and takes away the court's latitude
to adjust for reasonableness.
MR. NELSON agreed that Representative LeDoux is correct that
persons who bring a case and are successful in proving they were
aggrieved by a violation of AS 16.05.790 would be able to cover
full actual attorney fees, and if they were not successful the
other person would be limited by Rule 82.
CO-CHAIR RAMRAS asked that if a committee substitute deleted
Sections 2 and 3, would the defendant still be entitled to Rule
82.
MR. NELSON said yes.
2:54:32 PM
REPRESENTATIVE LEDOUX asked for clarification of Representative
Ramras' question.
CO-CHAIR RAMRAS responded that "the A.G. is saying that Section
2 and Section 3 may not be necessary for HB 107. So I think
that what we're going to try and do today is pass HB 107 out,
we'll review it, and could be that when we get to Judiciary
we'll just delete Section 2 and Section 3..."
REPRESENTATIVE KAPSNER interjected saying that was not a good
idea. "I think that we have a duty...to pass out the best piece
of legislation that we can," she said.
REPRESENTATIVE LEDOUX asked if Section 2 were eliminated, then
would Rule 82 not apply to the defendant.
REPRESENTATIVE SEATON said he thought Mr. Nelson was saying that
the committee is doing substantive law, and it has no effect on
Rule 82. The only reason to eliminate Sections 2 and 3 is to
make it consistent with other legislation.
REPRESENTATIVE LEDOUX said she understood that, but it doesn't
address the concern of the disparity of the plaintiff and
defendant's rights.
The committee took an at-ease from 2:57 PM to 2:59 PM.
2:58:41 PM
REPRESENTATIVE ELKINS asked if HB 107 would apply to commercial
fishing.
CO-CHAIR RAMRAS said he believes it applies only to hunters,
trappers, and wildlife viewers.
REPRESENTATIVE KAPSNER pointed out that "fishing" is in the
title.
REPRESENTATIVE LEDOUX said that since it applies to commercial
fishing, she is concerned about the seining industry in which
people are "corking each other off," and she said she hates to
see one being able to get actual attorney fees and the other
not.
REPRESENTATIVE CRAWFORD went back to his example and asked if he
could get full attorney fees if he won a lawsuit and if the
person defending his property rights could only get 30 percent.
REPRESENTATIVE KAPSNER asked Mr. Nelson if private property
rights supersede this legislation.
MR. NELSON answered that he didn't think it applied to people
who post their property with no trespassing or no hunting signs.
Once a hunter shoots an animal it becomes his or her property
which makes it more complicated, he said, and normally someone
would be entitled to go on to private land to retrieve his or
her property.
3:02:46 PM
CO-CHAIR RAMRAS announced that HB 107 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:03 p.m.
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