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