Legislature(1997 - 1998)
04/17/1997 01:45 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 19
"An Act relating to licensing of sport fishing services
operators and fishing guides; and providing for an
effective date."
Representative Mulder provided members with Amendment 1
(copy on file).
JOE MACKINKO, KODIAK testified via the teleconference
network in support of HB 19. He stressed that no management
or conservation is possible without good information. He
spoke against adoption of Amendment 1. He stressed the need
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for a level playing field.
BRUCE DICKERSON, GLENNALLEN testified via the teleconference
network. He does business in Unit 13. He noted that he has
$5 to $7 thousand dollars invested in licenses fees,
insurance and landing permits. He observed that many of the
people operating in Unit 13 do not have licenses. He
stressed that without enforcement of existing laws there is
no incentive for these operators to acquire the proper
permits and licenses. He maintained that commercial
operators using private property without permission of the
landowners is a common everyday business practice. He
acknowledged that enforcement alone is not sufficient. He
emphasized that there needs to be a penalty with some teeth
to detour illegal activity. He noted that the local game
warden receives little state support. He asserted that 140
game and fish violations were thrown out by the local
district attorney. He maintained that enforcement is
needed, not more rules and regulations. He asserted that
requirements for service and guide license penalizes those
that are already in compliance. He observed that they have
lost 30 days of their salmon season and Tuesdays due to
problems in the Kenai area. He stated that there is no
evidence to support the closure.
MIKE LANEGAN, GLENNALLEN testified via the teleconference
network. He maintained that the legislation is unneeded.
He emphasized the cost of required insurance, CPR courses,
and other licenses. He stated that he already spends $1,500
hundred dollars annually in addition to the licenses
required by HB 19.
KURT WILSON, GLENNALLEN testified via the teleconference
network. He agreed with comments by Mr. Dickerson. He
emphasized that there is one game warden in the area. He
stressed that the game warden cannot enforce the laws that
already exist.
DAVE HELMICK, PETERSBURG CHARTER BOAT ASSOCIATION testified
via the teleconference network in support of HB 19. He
stressed the need for fish guides to be accountable.
STAN MALCOM, PETERSBURG CHARTER BOAT ASSOCIATION testified
via the teleconference network in support of HB 19. He
emphasized that there was unanimous support for HB 19 at the
last Board of Fisheries' meeting, in Ketchikan, from active
charter and lodge operators. He maintained that HB 19 is a
reasonable vehicle for the Board of Fisheries to gather
needed information and provide basic requirements to obtain
a fishing services operator's or guide's license.
WILLI HERFF, KETCHIKAN testified via the teleconference
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network in opposition to HB 19. He emphasized that all fees
are indirect taxes. He spoke against more taxes. He stated
that he wants accountability and fairness. He stated that
more enforcement is needed. He stated that the non-resident
limit of four salmon should also apply to commercial non-
resident fisherman.
STEVE DAUGHERTY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW stated that he represents the Board of Fisheries. He
pointed out that the legislation contains a 3 to 1
difference between residents and non-residents fees. He
observed that the State is in litigation over a 3 to 1
differential in the commercial fisheries. He stated that
the Carlson v. State case is still under litigation, but
that there have been two decisions by the Alaska Supreme
Court. He stated that it is clear that the State is out of
compliance with the Privileges and Immunities Clause of the
United States Constitution. The Clause states that "the
citizens of each state shall be entitled to all privileges
and immunities of citizens of several states." He noted
that the intent is to level the playing field between states
so that a resident of one state is not discriminated against
in business enterprises in another state. The Alaska
Supreme Court has stated that: "The appropriate inquiry is
whether all fees and taxes which must be paid to the state
by a nonresident to enjoy the state-provided benefit are
substantially equal to those which must be paid by similarly
situated residents; when the resident's pro rata shares of
state revenues, to which nonresidents make no contribution,
are taken into account." He stated that there is no
evidence that residents are paying more than their fair
share for sport or guided sport support. He observed that
the majority of funding for sport fisheries is federal.
Mr. Daugherty noted that the Board of Fisheries's authority
is over guided sport fishermen, not over the guide. There
is some limited ability to affect the guide as is reasonably
necessary to implement restrictions on the guided sport
fisherman. He observed that the State would prevail against
claims that existing authority was being taken away.
Mr. Daugherty referred to the expansion of the Board's
authority over guided sport fishing time and area closures
to include the ability to prohibit registered guides or
registered guide vessels from fishing. He observed that the
Board of Fisheries currently has time and area closures for
guided sport fishing. He maintained that a guide can
continue to fish with someone on his boat and the State
cannot get a conviction because it cannot prove that the
person on the boat is paying the guide.
Mr. Daugherty observed that the legislation contains
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statewide reporting requirements. He noted that the Board
also needs the authority to require reporting on an area by
area basis.
Mr. Daugherty noted that the Board has a number of
regulations restricting fishing and retention by guides
while they have clients on board their vessel. He
maintained that the current language would give the Board
statutory authority for these restrictions.
Mr. Daugherty commented on requests for more enforcement.
He pointed out that there is not sufficient funding for
enforcement. He emphasized that most fishing violations are
minor penalties. Taking an excess of king salmon or taking
a king salmon on a day that is closed to fishing is a $100
hundred dollar violation. The bill will provide an
enforcement tool. Guides can lose their licenses under some
provisions of the bill. More substantial fines will be
available against guides that are guiding without a license
than are currently available.
In response to a question by Co-Chair Therriault, Mr.
Daugherty clarified that under the statutes of commercial
fishing, anyone who is involved in the taking of fish is
liable for a commercial fishing violation. Both the skipper
and crew would be liable for any violations. Charter boat
operators would not be liable since they are not actively
engaged in fishing. Co-Chair Therriault observed that it is
a fine line. Mr. Daugherty pointed out that any ambiguity
is made by the court in favor of the defendant.
In response to comments by Representative Mulder, Mr.
Daugherty clarified that the Privileges and Immunities
Clause only applies to commercial activities. Some fee
differentials can be justifiable based on the contributions
made by residents through general fund revenues. He added
that he does not have information that would support any fee
differential in this situation.
Representative Mulder maintained that fees for out-of-state
guides on the Kenai River are three times as great as the
fee for in-state guides. Mr. Daugherty did not know of any
challenge to that regulation. He acknowledged that it is
possible that this regulation is unconstitutional. He
observed that there are general funds that go into the parks
budget. He stated that a fact specific analysis would be
necessary to determine if it is unconstitutional. He
reiterated that there is no support for a fee differential.
He observed that language could be added to allow the
Department to adopt, by regulation, a fee differential to
the maximum extent allowable by law. This would allow a
differential at sometime in the future as changes in funding
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occur.
Representative Mulder asked what happens if the current fee
structure is maintained. Mr. Daugherty stated that the
worst analysis would be that the State would have to refund
the money that has been paid in excess of what residents
pay. The State would also have to pay legal fees.
REPRESENTATIVE ALAN AUSTERMAN observed that no studies have
been done to demonstrate that there is not a difference. He
expressed reluctance to change the fee structure. He
pointed out that the studies would have to be done if
litigation occurs. The State would have to prove what
constitutes the amount of money spent by the State.
In response to a question by Representative Davis, Mr.
Daugherty clarified that sport fishing guides are not
included under the definition of commercial fishing. He
noted that any type of commercial activity would be covered
by the Clause.
Representative Davies questioned if general fund dollars for
the management and regulation support of fish and game would
count as state contribution. Mr. Daugherty responded that
the state general fund contribution could be counted if it
could be broken out. He stressed difficulty of identifying
state support. He noted that State support is small
compared to the federal contribution to sport fishing. He
added that only the pro rata share of the individuals
involved can be considered.
Co-Chair Hanley asked if a severability clause should be
included. Mr. Daugherty observed that statutes are
considered severable without a severability clause. The
court would probably invalidate that portion of the fee that
is in excess of what residents pay. The Department of Fish
and Game may decide not to enforce the fee if so advised by
the Department of Law.
Co-Chair Therriault noted that the legislative intent would
be that the fee be collected from nonresidents. He
suggested that the Court would not eliminate the fee
completely.
Representative Mulder MOVED to Divide Amendment 1 between
lines 6 and 7. He explained that the first half of the
amendment refers to the "broad brush" regulatory authority
that the Board would be given. The remainder of the
legislation pertains to occupational licensing regulation as
it pertains to sport fish operators and guides. There being
NO OBJECTION, Amendment 1 was divided.
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Representative Mulder MOVED to adopt Amendment 1B (copy on
file). He noted that the amendment would delete the
language in subsection (4) on page 4 and subsection (6) on
page 5, "satisfies additional requirements adopted by the
Board of Fisheries that the Board finds necessary for the
conservation, development, utilization of the fishery
resources of the state, the safety of clients of the sport
fishing services industry, or the protection of the
integrity of the sport fishing services industry." He
maintained that the Board would have occupational licensing
powers. He asserted that the requirements should be turned
over to the Board of Occupational Licensing.
Representative Grussendorf noted that there is a sport fish
representative on the Board of Fisheries. He observed that
the amendment would make it difficult for the Board of
Fisheries to regulate an industry "that has basically gotten
out of control." He noted that, in Sitka, guided fishermen
are catching more than resident sport fishermen.
Representative Mulder expressed fear that the bill can be
used as a weapon by commercial fishermen against sport
fisherman, through the Board of Fisheries. He acknowledged
respect for the current Board. He maintained that
commercial fishermen believe that sport fishermen are
catching too much fish. He asserted that commercial
fishermen want to diminish sport fish opportunities.
Representative Grussendorf reiterated concerns that resident
sport fishermen in Alaska are concerned about the guided
sport fisheries that are dealing with nonresidents. He
stressed that conservation of the resource should be
considered.
Representative Davis observed that the legislation would
require a report. He noted that the Board would not be able
to react to recommendations by the report. He stressed that
any changes would have to be made in statute.
Representative Mulder stated that the amendment only
pertains to licensure. He asked if there are additional
requirements that should be included. He stressed that the
Board would have "broad brush" authority to restrict
licensure.
Co-Chair Hanley pointed out that if Amendment 1A does not
pass the Board would still have authority. He referred to
page 3, lines 14 and 15. He noted that the Board would be
able to "regulate the sport fishing services industry as
need for the conservation, development, and utilization of
fishery resources.
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Mr. Daugherty noted that the Board's authority with
Amendment 1A would not be as broad as it would be with the
inclusion of Amendment 1B. He clarified that Amendment 1B
applies to the actual issuance of the license. Amendment 1A
applies to the general regulation of fisheries.
(Tape Change, HFC 97-104, Side 2)
Mr. Daugherty explained that if someone had a lot of
violations, such as not turning in their reports to the
Board, they would be unable to get a license. Amendment 1B
would take away the authority of the Board of set general
licensing guidelines. The Board could not require that
guides know how to safely release a fish, identify fish, or
require experience in an area if they determined it was
necessary for conservation. The Board's ability to adopt
general regulations regarding gear would remain if Amendment
1A is not adopted.
Representative Kohring spoke in support of Amendment 1B. He
maintained that the Department of Fish and Game has not
managed fish stocks well. He added that the Board of
Fisheries has not been responsive.
Representative Austerman noted that the amendment pertains
to the guide not the overall industry.
In response to a question by Representative Grussendorf, Mr.
Daugherty clarified that some members of the Board would
like to impose substantive requirements that would encourage
respect for the resource and to set a basic standard of
knowledge. The Board has not discussed any specific
revisions. The Board has some regulations regarding how the
resource is handled once it is caught. These regulations do
not apply just to guides. The Board has expressed concern
with guiding operations that are processing fish.
Representative Mulder spoke in support of Amendment 1B. He
spoke against allowing the Board broad authority.
Representative Davis noted that different types of fisheries
need to be addressed differently. He maintained that the
industry will be regulated. He stated that if the Board
cannot regulate guides on the Kenai River then there will be
shorter days or days closed.
Representative Davies observed that the legislation would
not generate additional paperwork. He emphasized that the
Board is not being given broad powers. He pointed out that
the Board must find that the additional requirements are
necessary for the conservation, development, and utilization
of the fishery resources.
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Representative Moses spoke against the amendment.
Co-Chair Hanley asked if the Board could limit the number of
licenses. Mr. Daugherty clarified that the legislation
would not allow the Board to adopt regulations that would
limit entry. He noted that a constitutional amendment may
be needed before the Board could limit the number of guides.
A roll call vote was taken on the MOTION Amendment 1B.
IN FAVOR: Davis, Foster, Kelly, Kohring, Martin, Mulder,
Therriault, Hanley
OPPOSED: Davies Grussendorf, Moses
The MOTION PASSED (8-3).
Representative Mulder MOVED to adopt Amendment 1A (copy on
file). Co-Chair Therriault OBJECTED. Representative Mulder
stressed that the guides are not the problem. He maintained
that the Board already has the power. He asserted that the
Board is allowing a wedge between the user groups. He
referred to regulations that would limit guide activity. He
maintained that regulations reduce sport fish angular
effort. He asserted that sport fish has taken a subservient
role in relation to commercial fishing. He stressed that
Alaskan residents hire guides. He stated that guides are
not commercial fishermen. He concluded that it is
inappropriate to give the Board of Fisheries authority to
reduce sport fish angular effort.
Co-Chair Hanley spoke against Amendment 1A. He stressed
that there is a difference between someone who makes their
money taking others fishing versus someone who fishes on
their own. He stated that the Board should be able to
regulate for the conservation, development and utilization
of the fishery.
Representative Davies emphasized that guides are involved in
a commercial activity. He noted that there is a distinction
in statute between commercial and sport fishing.
Representative Grussendorf observed that resident sport
fishermen in his district are concerned about the activities
of guided fishing. He stated sport fishermen recognize the
problem and are concerned with their reputation. He
stressed that 90 percent of the clientele of guided
fisheries are nonresidents. He noted that the number of
sport fish caught by nonresidents exceed, the amount caught
by residents in some communities.
Representative Davis recognized sport fish guiding as a
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commercial activity. He maintained that management has
benefited the Kenai salmon run. He spoke in opposition to
Amendment 1A.
Representative Austerman spoke in opposition to Amendment
1A. He stressed that the Board needs to have the authority
to regulate the guided sport fish industry. He proposed
that section 17 on page 3, lines 13 - 15 be moved into
section 12 on page 3, line 22. He stressed the issue of
equity. He stated that as long as one industry is making
money off of a resource then the second industry should fall
within the overall guidelines of how the resource is used
and conserved. He noted that commercial fishermen are told
how many days and hours they can fish, and how many fish can
be caught. He stressed that there should be the ability to
control the whole system.
Representative Mulder expressed frustration with the issue.
He stated that he would not oppose a Commercial Services
Fish Guiding Board. He reiterated that he fears the unknown
of the Board of Fisheries.
A roll call vote was taken on the MOTION to adopt Amendment
1A.
IN FAVOR: Kelly, Kohring, Martin, Mulder, Foster
OPPOSED: Grussendorf, Moses, Davies, Davis, Therriault,
Hanley
The MOTION FAILED (5-6).
Co-Chair Therriault MOVED to adopt Amendment 2 (copy on
file). Amendment 2 moves section 17 on page 3, lines 13 -
15 into section 12 on page 3, line 22. There being NO
OBJECTION, it was so ordered.
Co-Chair Therriault MOVED to adopt Amendment 3 (copy on
file). He noted that Amendment 3 deletes page 8, lines 17 -
28. This section was inadvertently left in the
legislation. There being NO OBJECTION, it was so ordered.
Co-Chair Therriault referred to the fiscal note. He
suggested that if the nonresident fee was found to be
invalid that it would be lowered to the resident rate.
Representative Davis MOVED to report CSHB 19 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
ADJOURNMENT
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The meeting adjourned at 3:20 p.m.
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