01/25/2012 03:30 PM Senate RESOURCES

             SB  24-SPORT FISHING GUIDING SERVICES                                                                          
                                                                                                                                
3:35:10 PM                                                                                                                    
CO-CHAIR  WAGONER announced  SB 24  to be  up for  consideration.                                                               
[CSSB 24( ), labeled 27-LS0278\I, was before the committee.]                                                                    
                                                                                                                                
MICHAEL PAWLOWSKI, staff to Senator  Lesil McGuire, sponsor of SB
, said  the Department  of Fish  and Game  representatives were                                                               
asked to  talk about  the enforcement  provisions in  the current                                                               
draft, in particular AS 08.57.220  on page 13, the responsibility                                                               
provisions.                                                                                                                     
                                                                                                                                
3:36:51 PM                                                                                                                    
AL CAIN,  Division of Sport  Fish, Alaska Department of  Fish and                                                               
Game  (ADF&G), explained  that section  (1) on  page 14  [Section                                                               
.220] makes the guide, outfitter  or transporter responsible when                                                               
a client  commits a  violation in their  presence. He  didn't see                                                               
any  culpable  mental  state  stated;  Section  .200,  the  civil                                                               
penalties provision,  would come into  play for that.  An example                                                               
would be  a client  on a  boat catching too  many fish  while the                                                               
guide wasn't paying attention. But  the guide could not be issued                                                               
a citation for  the same violation that the  client had committed                                                               
in those circumstances.                                                                                                         
                                                                                                                                
Section  (2)  requires  that the  guide  expressly  (or  implied)                                                               
authorizes  an unlawful  act; in  that  case the  guide would  be                                                               
equally  responsible for  that violation.  He could  be sentenced                                                               
under Section .210, the criminal provisions.                                                                                    
                                                                                                                                
3:39:46 PM                                                                                                                    
SENATOR STEDMAN  asked how  the guide or  the assistant  guide is                                                               
tied back to the outfitter. There  seems to be occasions when the                                                               
behavior  of the  guide is  condoned by  the people  that own  or                                                               
manage  particular lodges;  and then  they have  the tendency  of                                                               
claiming they are just hiring an individual contract worker.                                                                    
                                                                                                                                
MR.  CAIN  said  he  didn't   see  any  provision  allowing  that                                                               
connection under Section  .210 in the bill. And  by outfitter, he                                                               
assumed that he meant the  actual guide; current law provides for                                                               
operators who  employ guides; those  premises change in SB  24 to                                                               
"a  guide who  employs  assistant guides."  He  asked if  Senator                                                               
Stedman meant  how the guide  who is not on  the boat but  who is                                                               
the employer of the assistant guide is made responsible.                                                                        
                                                                                                                                
SENATOR STEDMAN said yes.                                                                                                       
                                                                                                                                
MR. CAIN  said he  didn't see  a provision  that allows  for that                                                               
connection. Under Section .210 he  sees "a person who is licensed                                                               
under the  chapter who commits  or aides  in the commission  of a                                                               
violation  or permits  the client  to commit  a violation."  That                                                               
language infers  the guide or assistant  guide who is out  on the                                                               
boat and does not make the actual  guide who is back at the lodge                                                               
responsible. Current language in  AS 16.40.260 makes the operator                                                               
liable  for inappropriate  actions committed  by the  guides they                                                               
employ. At this time SB 24 doesn't capture that element.                                                                        
                                                                                                                                
SENATOR  STEDMAN  suggested  they   look  at  strengthening  that                                                               
language, because  there are some  lodges that  condone egregious                                                               
violations  of  the  state's  fish   and  game  laws.  It's  very                                                               
difficult to go back to the  lodge owner from a guided sport boat                                                               
when he is not on the boat.                                                                                                     
                                                                                                                                
3:42:53 PM                                                                                                                    
CO-CHAIR  PASKVAN  said  he  had  heard over  the  years  in  the                                                               
construction  trades a  general  contractor,  for example,  hires                                                               
sheetrock   workers  not   as   employees   but  as   independent                                                               
contractors, and  the question is  if a lodge operator  would use                                                               
an  artifice to  create  a  mechanism to  avoid  a liability  for                                                               
egregious conduct.                                                                                                              
                                                                                                                                
CO-CHAIR WAGONER agreed that language  needed to be looked at and                                                               
thanked Mr. Cain for his testimony.                                                                                             
                                                                                                                                
3:44:01 PM                                                                                                                    
CO-CHAIR  WAGONER said  he had  an amendment  to restrict  public                                                               
members  to current  commercial fishers  not one  person who  has                                                               
been a commercial  fisherman. He also had an  amendment to delete                                                               
the waiver  for the Kenai  River Special Management area  that is                                                               
already in statute.                                                                                                             
                                                                                                                                
CO-CHAIR WAGONER said SB 24 would be held for further work.