Legislature(1997 - 1998)
04/05/1997 01:12 PM 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
HB 19 - SPORT FISHING GUIDES Number 0058 CO-CHAIR OGAN announced the first order of business was House Bill No. 19, "An Act relating to licensing of sport fishing services operators and fishing guides; and providing for an effective date." REPRESENTATIVE ALAN AUSTERMAN, sponsor, said this bill was relatively the same as the one introduced last year that did not make it through the Senate. He explained that HB 19 sets up a system for charter boat operators, requiring them to register with the state and to report their catches. Number 0152 CO-CHAIRMAN BILL HUDSON made a motion to adopt the proposed committee substitute, 0-LS0140\Q, Utermohle, 4/3/97. There being no objection, CSHB 19(RES) was before the committee. Number 0216 REPRESENTATIVE AUSTERMAN referred to Section 1 of CSHB 19(RES) and said this amends the current statutes. Everything on page 1 and page 2 are in current statutes. On page 3, line 14, under section 17, regulating the sport fishing services industry need for conservation, development, and utilization of fishery resources, this language gives the Board of Fisheries the authority to regulate the sports fish guides. REPRESENTATIVE AUSTERMAN addressed Section 2, which sets the license fee rates for the sport charter boat operators and the guides. There are three different classes of licenses: sport fish operator, guide and a combination of the two other classes. A concern that has been raised is the disparity between a resident and a nonresident fee. There is basically a one-to-three ratio between resident and nonresident fees, the same ratio as is found in a number of other fees throughout the state. He wanted to leave the disparity, at three to one, even though at some time it might be out of synch with other fish and game charges. There is a current court case involving those charges. REPRESENTATIVE AUSTERMAN said Section 3, beginning on page 3, line 29, gets into the different classes. The first class is the sports fish services operator license. For instance, a lodge operator might have any number of guides working for him, but he is the operator. This section provides criteria needed to be an operator, everything from having insurance to holding a current fishing license. On page 4, line 23, it provides a definition for a fish guide: a person who works for an operator. The reason why they are classified differently is a situation where someone is simply an employee guide. REPRESENTATIVE AUSTERMAN referred to page 5, which states that a guide must have CPR, First Aid, a fishing license and those kinds of things. The sport fishing services operator and fishing guide license are mentioned in this section, but the definition goes back to page 3, line 24. This is a situation where you have an operator who is the sole operator, who has no guides who work for him and wants to be classified as an operator. This person needs a guide license as well as operating license because he is the actual person doing the guiding. Those two classifications have been combined, so that as a sole operator you can have your license and be legal. Number 0551 REPRESENTATIVE JOE GREEN clarified that it is the same fee schedule for both the sport fishing services operator license only and the combination license. He asked whether there was a reason why there wasn't a slight cost increase for a combination license. REPRESENTATIVE AUSTERMAN replied that it didn't seem fair, just because operators and guides were classified, that a sole operator should have to pay more. Number 0589 REPRESENTATIVE GREEN asked whether or not anyone would only purchase a sport fishing services operator license. Number 0605 REPRESENTATIVE AUSTERMAN responded that there might be absentee owners who wouldn't go out and guide. REPRESENTATIVE AUSTERMAN referred to Section 3, page 3, and said it is actually a whole new section in statute. Page 6 has a reporting requirement, set up in statute, on how the guides and operators are supposed to record their catch. He felt this was a key component of CSHB 19(RES). The intent is to have the guides register and have their catch reported so that the Department of Fish and Game (ADF&G) and the Board of Fisheries would have some information tools with which to work. REPRESENTATIVE AUSTERMAN addressed line 27, page 6, which sets out the penalties for a violation by any of the guides or operators. Page 7 sets up definitions for this new section. He referred to page 8, Section 4, and stated that this addresses a concern of the Division of Sport Fish, ADF&G, and some operators who might be collecting the in-season information. In the reporting section on page 6, it says, "The department shall collect". This language does not leave the ADF&G any options. REPRESENTATIVE AUSTERMAN said Section 4, page 8, repeals the in- season collection. It provides a sunset to that clause within CSHB 19(RES) to appease the Division of Sport Fish and some operators, who did not feel the "shall" language was the correct way to go. This sunset provision gives them the option, in three years, to look at it and repeal it if it is not working the way in which it was envisioned to work. REPRESENTATIVE AUSTERMAN addressed Section 5, page 8, which addresses the transition period. It gives the ADF&G time to set up these statutes, put the paperwork in place and begin the collection of information. Section 6 is also a transition section regarding the fees being charged; it prorates the fees from when the bill is signed into law. Section 7, page 9, is the effective date, relating back to Section 4, which repeals the language on the "shall", gathers the in-season information, and dates it. Number 0866 CO-CHAIRMAN OGAN referred to Section 3, page 3, line 31, "holds a current business license under AS 43.70". However, the license referred to in CSHB 19(RES) is a Title 16 license. Number 0899 REPRESENTATIVE AUSTERMAN responded that to do business in the state of Alaska you need a business license, whether you are a sport fish operator or running a business. You can be without a business license if you are a guide working for someone else. This business license is separate from the actual operator's license. Number 0940 CO-CHAIRMAN OGAN asked if most businesses were under Title 8, under commerce. Number 0953 REPRESENTATIVE AUSTERMAN said Title 16 is under the ADF&G. The operator license would be distributed by the ADF&G. A vendor such as a sporting good store will be able to sell guide licenses. Number 1025 CO-CHAIRMAN OGAN commented that this will be similar to commercial fishing crew licenses, which can be bought through a vendor. He asked if any fees were set for a Title 43 operator license. REPRESENTATIVE AUSTERMAN said it would be the fee for a normal business license, $25. Number 1040 REPRESENTATIVE REGGIE JOULE asked if you would have to meet certain requirements in order to purchase this license, as you do in order to obtain a U.S. Coast Guard license. REPRESENTATIVE AUSTERMAN explained that the Board of Game used to have a series of assistant guide licenses, but CSHB 19(RES) is different from those. Number 1085 REPRESENTATIVE JOULE questioned whether these requirements could be set in regulation. When the legislature passes a bill with a certain intent, the regulations can be changed from the original intent. He wondered if CSHB 19(RES) would leave any room for that kind of change and whether this would be an area of concern. Number 1114 REPRESENTATIVE AUSTERMAN responded that if a group of charter boat operators were to go to the Board of Fisheries requesting regulations to govern aspects of charter boat trips, the board would then look at this request. Without specific language in CSHB 19(RES), the legislature would not know whether the Board of Fisheries could do that. CO-CHAIRMAN OGAN asked Mr. Daugherty to look at Section 3, paragraph 17, located on page 3, line 14. REPRESENTATIVE AUSTERMAN suggested that the committee look at version P, the version before CSHB 19(RES), regarding the same section. That version gave the Board of Fisheries the permission to do the same things. Number 1188 STEVE DAUGHERTY, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, said the Board of Fisheries might have the authority to establish some type of testing, but only for the purposes of conservation and development. With the language regarding safety and integrity of the industry removed, the Board of Fisheries' only concern would be for conservation and development. The board could require that the guides know how to identify different species of fish and how to safely release those without a high mortality rate, in a catch-and- release fishery. The board could conceivably adopt a regulation requiring some basic knowledge, but the scope of regulations would be limited to knowledge and testing. Number 1243 REPRESENTATIVE AUSTERMAN explained the reason for omitting language from CSHB 19(RES) was because of the question about giving the Board of Fisheries the ability to regulate the industry. Number 1264 CO-CHAIRMAN OGAN argued that this would be a Title 8 function of the Department of Commerce and Economic Development. Number 1271 REPRESENTATIVE GREEN asked whether the current fee schedule, shown in Section 6, page 9, was the listed $40 and $120. Number 1295 REPRESENTATIVE AUSTERMAN explained this is for the prorated transition year after CSHB 19(RES) is enacted. The enacted fees are located on page 3. He said there is no current fee schedule. Number 1321 REPRESENTATIVE GREEN asked that if Section 4 does not become effective until 2001, would the fee schedule listed on page 9 remain effective until that time. Number 1336 REPRESENTATIVE AUSTERMAN responded that the prorated fees would become effective during the 1997 season. The enacted fee schedule listed on page 3 would then become effective for the 1998 season. He clarified that Section 2 regards fees and is different from Section 4. Section 4 regards the collection of information and comes into effect in 2001. Number 1378 REPRESENTATIVE RAMONA BARNES asked if there was a Coast Guard insurance requirement for hauling passengers. Number 1396 REPRESENTATIVE AUSTERMAN did not believe there was this requirement. He believed their only requirement was the need for a six-pack license. The insurance companies have set the rates that they would like the industry to have. Number 1414 CO-CHAIRMAN HUDSON said the operators need a six-pack license, be annually or periodically inspected and carry the seal of the Coast Guard inspection. Number 1423 REPRESENTATIVE BARNES stated that both of her sons were sports fishing guides. She thought they had to have insurance which was a lot more than $300,000. Number 1438 REPRESENTATIVE AUSTERMAN believed that on the Kenai River, he couldn't remember which park, there was a license and insurance requirement which was separate from the Coast Guard requirement. Number 1457 CO-CHAIRMAN HUDSON clarified that there is an area requirement. Number 1479 REPRESENTATIVE JOULE said that it is the operators who get insurance, not individuals. Number 1489 REPRESENTATIVE BARNES responded that it was a family business. Number 1508 CO-CHAIRMAN HUDSON asked if CSHB 19(RES) came as a result of an appeal from the sport fishing guide industry. Number 1516 REPRESENTATIVE AUSTERMAN explained that he initiated this legislation based on his work with the Convention and Visitors Bureau and the National Fisheries Council. When Clem Tillion was on that council they looked at a moratorium date of September of 1993 for the halibut charter boat industry. They realized that information wasn't available, in a good enough format, for them to impose this moratorium. In subsequent letters and information from the council, those organizations asked the legislature to do something. After he introduced legislation, he found that there had been similar legislation introduced by Representative Williams. Number 1592 REPRESENTATIVE GREEN asked what the bottom line was of CSHB 19(RES). He questioned whether it would provide understanding regarding the number of guides, does it involve a safety issue, or some other issue. Number 1615 REPRESENTATIVE AUSTERMAN hoped CSHB 19(RES) would register the vessels and report their catch, so we gain knowledge of how many people are in the industry and how many fish are being caught. This information will assist the conservation issue. As this industry grows, the ADF&G and the Board of Fisheries need information to ensure a sound management of the resources. There is a need to have good, solid information on what is happening in the resource industry. Number 1651 REPRESENTATIVE GREEN stated that the state gets historical catch information. He asked if CSHB 19(RES) would provide a more accurate number. In the past, fishermen have paid and the count is recorded. Number 1661 REPRESENTATIVE AUSTERMAN said, based on the experience of the council and convention and visitors bureau, information on the Ayakulik River and Karluk River was controlled by the National Wildlife Refuge. The refuge requires operators on those rivers to submit a catch report on a daily basis. When those numbers were compared to the numbers the ADF&G was coming up with on the creel count, they were very different. The want a better set of numbers through in-season reporting. Number 1705 REPRESENTATIVE GREEN asked if the fees were estimated based on the cost of obtaining this information. REPRESENTATIVE AUSTERMAN answered that they hoped fees would offset those costs. Number 1723 CO-CHAIRMAN HUDSON said the income in the second year creates about $106,000, while the cost remains fairly constant at $282,000. He thought the ADF&G's fiscal note should reflect an annual loss of $176,000. He thought the fee schedule should be amended to cover the cost of administering this program. Number 1760 REPRESENTATIVE AUSTERMAN relied upon the ADF&G's estimates. Once this is done for a year or two, the figures will resemble the numbers listed on the fiscal note or else the legislature will have to go back and look at the fee structure. Number 1773 CO-CHAIRMAN HUDSON stated that the legislature is trying to set up a system to collect information in order to understand what occurs from a biological and management point of view. Currently a lot of nonresidents are able to come up with a six-pack license, buy a $25 license fee, bring their boat into the harbor and open up a business. These nonresidents are taking a tremendous amount of the state's resource. He felt that if the state of Alaska was one of the last major fisheries, then he there should be a fee which equaled the worth of the industry and the resource. Alaska should not have to subsidize this type of industry. The commercial fishing industry has a license, a crew license, raw fish taxes and things collected to put into the general fund. He wanted someone from the ADF&G or the sponsor to speak to the issue of having these costs balance out the costs of the program. He agreed with the collection of the information from the sports fisheries. Number 1868 REPRESENTATIVE AUSTERMAN felt the industry should cover the cost of the program. Part of the costs could be made up through the ADF&G's and the Board of Fisheries' conservation measures such as bag limits. He suspected that a king salmon tag would be implemented, which would result in the costs being carried through the users of the industry. This bill deals with the operator, the guide, and does not deal with individual fishermen who are coming to Alaska. Issues concerning those fishermen have to be covered through the ADF&G and the Board of Fisheries, in sport fish license fees and bag limits. Number 1924 REPRESENTATIVE BILL WILLIAMS asked if the sponsor had considered raising the $75 fee. Number 1934 REPRESENTATIVE AUSTERMAN said he had not. The ADF&G would need to address the issue of having the program pay for itself. Number 1959 REPRESENTATIVE WILLIAMS stated that in talking to some of the guides, they would accept a higher rate in order to keep nonresident guides from coming into Alaska. The nonresidents frequently come and work in Ketchikan. Number 1994 REPRESENTATIVE AUSTERMAN agreed on the operator's license, but he felt it was a different thing when it came to the guide license. He expressed concern with raising the cost of this too much. Number 2040 JOE KLUTCH, guide and member of the local fish and game advisory committee, testified next via teleconference from an offnet site in King Salmon. He stated that there has been a dramatic increase in the level of commercial industries related to sport fishing, especially in the last four or five years. This has resulted in a number of conservation issues and associated impacts on fishing stocks. As a result, a heightened allocation conflict has arisen among different user groups and within the individual user groups. The quality of experience, around which Alaska has developed a reputation, is slipping away. He felt Representative Barnes expressed this when she referred to her sons giving up sports fish guiding because of overcrowding on the Kenai River. MR. KLUTCH said the rate of growth, in many areas of the state, is not sustainable if our objective to provide a quality experience and to maintain healthy stocks. To date, the Board of Fisheries hasn't had adequate guidelines and definitions in statute to allow it to regulate and allocate among sport fishing entities. He believed CSHB 19(RES) would rectify that situation. It certainly is a step in the right direction. The time is long overdue for a state licensing program which will set proper definitions and provide the Board of Fisheries with the tools it needs to properly regulate the resources among user groups, particularly among sport fishing groups. MR. KLUTCH referred to page 3, line 16, regarding the licensing function, and asked if the licensing authority rested with the ADF&G or the Department of Commerce and Economic Development. Number 2171 CO-CHAIRMAN OGAN said Section 2 regards the Title 16, ADF&G function. Section 3 of the bill, referring to a person who is a sport fishing services operator, requires a business license under the Department of Revenue (DOR). Number 2190 MR. KLUTCH referred to the question of insurance. He explained that the respective land managers, the National Park Service, the U.S. Forest Service, the U.S. Fish and Wildlife Service, private land holders, Native corporations and state parks, can and do have insurance requirements as part of their permitting schemes. There are no U.S. Coast Guard requirements. Many operators are working on navigable waters that do not require a land manager permit. He thought the insurance requirement in CSHB 19(RES) was a responsible business practice that would ensure a higher quality of service. Number 2257 MR. KLUTCH referred to page 7, line 8, the definitions section, where there is a reference to a fishing club. There is also a reference to a fishing club on page 8, line 6. He felt it was important to have this fishing club definition. In Southwest Alaska there is a problem when nonresident groups form a business. The money for this business is collected in Europe; all the bookings are done in Europe. They come to Alaska, acquire a piece of property and equipment, and then they conduct a commercial activity, as a club, which exempts them from state taxes and commercial licensing requirements. He suggested that a tight definition relating to fishing clubs be brought under this regulatory umbrella. Number 2318 MR. KLUTCH commented that one of the problems that the ADF&G will have when they go to allocate amongst commercial entities is that you need to have tight definitions that include everybody. He referred to page 7, line 26; he summarized that people who rented a vessel, including rafts, boats, et cetera, without an operator would not be included under the outfitter license or the guide license. Number 2346 REPRESENTATIVE AUSTERMAN verified that was correct. Number 2350 MR. KLUTCH suggested the legislature was leaving one link of the chain out there. As a commercial entity, this group has the ability to impact resources and other user groups, and they ought to be included in CSHB 19(RES). If guiding activities are included, then boat renting activities should not be exempted. Inclusion of these activities would allow the Board of Fisheries to regulate them. He felt the time for this type of legislation was long overdue. Number 2434 REPRESENTATIVE AUSTERMAN said renting and leasing of vessels, including air charter services, was included in past versions of CSHB 19(RES). Having Alaska Airlines weigh the box and report the amount was also suggested. He felt this bill couldn't be all- inclusive. As a sports fisherman, he brings in catch that he doesn't report. He stated that CSHB 19(RES) is a basic bill. TAPE 97-36, SIDE B Number 0000 REPRESENTATIVE AUSTERMAN explained that to include these provisions would allow the bill to be defeated. Number 0011 CO-CHAIRMAN OGAN referred to page 7, line 23, regarding an outfitting description in Title 15, which would say that guides could not outfit unless they had a guide license. He expressed concern that this would create a loophole. Someone, under the guise of outfitting themselves for fishing, could go out and set up camps on rivers and run a hunting operation. The new language specifically regards fisherman, but he asked whether there was any conflict within the hunting guide industry. Number 0060 MR. KLUTCH said he would have to study the language carefully. Based on what the co-chair stated, there could be the potential for a problem. He asked whether there was language to address this concern. Number 0078 CO-CHAIRMAN OGAN responded that language could be added. He felt this issue should be thoroughly addressed in one of the committees of referral to prevent a loophole where people would operate a hunting operation under the guise of Title 16 fish outfitting. He suggested changing the description after, "(4)" to put "fishing outfitting" or "fishing outfitter", for example, instead of "outfitting". The language would enhance the clarity. Number 0134 MR. KLUTCH felt "fishing outfitting" was a good suggestion. Number 0155 DALE BONDURANT testified next via teleconference from Kenai. He felt the regulations in CSHB 19(RES) were valid. Within the last year, guides have begun supporting a bill such as this one. This would give their industry a lot more responsibility. His interest in this bill regards the operating license fees, the differential. He referred to Mr. Daugherty's testimony on Carlson v. State of Alaska, which raises legal question regarding the fee differential. He thought if there was a legal question it should be settled now. He felt the nonresident bashing is not something of which we should be proud. Number 0248 CO-CHAIRMAN HUDSON asked if he had any citations for the committee to refer to in order to see how the constitutional issue might be resolved. Number 0277 MR. BONDURANT explained that he understood higher fees could be charged for nonresidents in the way they contribute to the management of the resource. He did not think this would be supportable in Alaska because 85 percent of sports fish management money comes from nonresidents. He referred to a case involving Carl Anderson (ph), who fought a nonresident commercial fisherman charge in Alaska's territorial days. The court found that this was not allowable. The decision was based on the enforcement costs. When the numbers were looked at, the nonresidents were paying four times the amount of enforcement. He said there were several cases which support this decision. Number 0350 CO-CHAIRMAN HUDSON referred to the statutes and a collateral reference in AS 16.05.340 on page 34. There is a constitutionality in state laws that prevents discrimination against nonresidents or aliens in fishing and hunting rights, 52L edition, second date 24. This is something the Department of Law should address. Number 0376 REPRESENTATIVE AUSTERMAN felt that until there was a resolution in this case, the disparity could continue, but he wanted to let Mr. Daugherty address it. Number 0412 MR. DAUGHERTY stated that he represents the Board of Fisheries. In Carlson v. State of Alaska, the Alaska Supreme Court issued a test to determine whether or not a differential fee can be applied to nonresidents in a commercial activity. This test is applicable only to commercial activities; there is nothing that prevents a higher fee for a sport fishing person or for hunting. It is only in a commercial activity that the privileges and immunities clause of the U.S. Constitution is implicated. It is implicated when a person's ability to earn a living is affected. The U.S. Constitution prohibits states from discriminating against out-of- state residents through their income sources. MR. DAUGHERTY explained the test: an appropriate inquiry accesses whether all fees and taxes paid to the state by a nonresident to enjoy the state-provided benefit are substantially equal to those that must be paid by similarly situated residents, when the residents' pro rata share of state revenues, to which nonresidents make no contribution, are taken into account. Basically this says that oil revenues of the state general fund money, spent on an activity, equal a pro rata share paid by residents to say that nonresidents have to make up that difference. Under the most recent Carlson case, the court has made it clear that only the share of the people participating in the activity can be used. The Carlson case addressed commercial fisherman. The argument used was that oil revenues, which the state spent on managing fisheries, were put up amongst all residents of the state and then divided out to figure out how many commercial fishermen there were, then the number was multiplied by that figure. He reiterated that you are not able to take all of the contributions of the state, only those that can be credited to the individuals who participate in that fishery. MR. DAUGHERTY said the Department of Law (DOL) was not aware of any evidence indicating it is significantly more expensive for the state to license a nonresident than a resident or that residents contribute more to sport fish production than nonresidents. There is a probable constitutional problem with CSHB 19(RES) regarding the privileges and immunities clause of the U.S. Constitution. The DOL would prefer to see that provision taken out and some other provision added. MR. DAUGHERTY said another bill referring to commercial fisheries delegates authority to the ADF&G to adopt a fee differential to the maximum extent allowed by law. This would allow the ADF&G to adjust to the changing court decisions to adopt fee differentials and to figure out the budgets. It is difficult to break up those funds. There are a number of economists working on the Carlson case to break up the department's budget to determine what money goes where and how much of that can be attributed to residents and nonresidents. It is a complicated thing which is not cost effective when you deal with such a small number of people who will register to be a guide. Number 0590 REPRESENTATIVE GREEN asked if this was an Alaska Supreme Court decision or was it a federal court decision. Number 0599 MR. DAUGHERTY answered that the Carlson case was an Alaska Supreme Court decision. Number 0609 CO-CHAIRMAN OGAN asked if a two-to-one ratio would be better than a three-to-one ratio. MR. DAUGHERTY said the smaller the differential, the easier it would be to defend. Yet, he was unaware of any information that would support a two-to-one ratio. Number 0628 REPRESENTATIVE BARNES believed there had been court cases in the past relating to the residency/nonresidency requirement. The cases showed a nexus between the differential charged between the resident and nonresident which could be constitutional. If you show that nonresidents and sports fishers contribute to the budget which manages those fisheries, then the fees are their contribution to help manage those fisheries. She asked whether he thought this was the nexus to show it was constitutional. Number 0667 MR. DAUGHERTY answered that if the state could make that type of showing, it would properly do the job. However, the state cannot make that type of showing. The majority of money used for the management of sport fisheries comes through federal money paid through federal sport fish restoration funding. The state receives a large percentage of funding through the actual sports fishing licenses where the state charges a higher fee to nonresidents than to residents. Number 0699 REPRESENTATIVE BARNES clarified that the funds being addressed were Dingill-Johnson funds and Pittman-Robertson funds, used for the management of fish. She believed that the state contributed large chunks of money to the ADF&G, and certainly some portion of that, certainly the administrative cost applied to the budget, has to be considered when you are taking into account the cost of managing any fishery. Number 0740 MR. DAUGHERTY said that fees could be adopted to recover the state's costs if we charged residents and nonresidents equally. Right now there is not a factual account showing that it costs more to license a nonresident than a resident. The administrative costs are essentially the same for residents and nonresidents. You can't require nonresidents to pay their full share of the administrative costs and not require residents to pay their full share of the administrative costs. Number 0769 CO-CHAIRMAN HUDSON referred to all the additional costs needed to support this segment of the industry, such as the infrastructure, including ports, harbors and launching areas. Residents are paying a property tax and a sales tax on a regular basis, which goes to pay for that infrastructure. Number 0814 REPRESENTATIVE BARNES brought up the issue of her sons being unwilling to take fish out of the Kenai River because it was overcrowded. She used this as an example where nonresidents displaced Alaska residents who contribute to this state in many ways. Number 0865 MR. DAUGHERTY recognized the difficulty with this issue. The problem, at this point, is that the state does not have the technical ability to break out and show what the resident contribution is and what the contribution by nonresidents should be. It would be difficult to make that showing and might cost more money than could be made by having a differential fee scale. CO-CHAIRMAN OGAN asked when the Carlson case would be settled. He also asked whether, if this case were to be settled, the state would have to refund monies. Number 0906 MR. DAUGHERTY answered that the Carlson case has been in court for approximately 12 or 13 years. It is on remand from the supreme court for the second time. The prognosis is uncertain, and it could still result in years of litigation. The current dispute regards how much the state owes by determining the nonresident share and what the residents' contributions have been. These questions could take a couple more years to resolve. On the basic issue of whether or not the state can charge the additional fee, the courts have ruled against the state in all matters, unless the state can do a break-out and show what the resident contribution is. Number 0960 REPRESENTATIVE BARNES referred to the issue of game, where we have two fees that the state charges for big game species. As far as she knew, this fee differential wasn't a problem. The state does it, and they show a nexus because the residents pay to manage that resource. Number 0990 MR. DAUGHERTY explained sport fishing and hunting does not implicate the privileges and immunities clause of the U.S. Constitution. The state can charge a higher fee for hunting and fishing. It is only when occupational licenses are involved that the privileges and immunities clause of the U.S. Constitution is implicated. The state can recover costs through charging a higher fee to a nonresident for the actual act of hunting and fishing, but the state is limited by the privileges and immunities clause when they try to recover those costs from the guides themselves. Number 1036 MR. DAUGHERTY said the other major point was the importance of the provisions of Section 1, paragraph 17, which gives the Board of Fisheries authority to regulate for conservation, development and utilization of fishery resources. A number of individuals have tried to imply that the board does not need this authority, that they already have this authority over guided sport fishing and this is all the authority they need. MR. DAUGHERTY stated, as a representative of the Board of Fisheries, that the board does not have the authority that they need at this time. The provision in CSHB 19(RES) would put sports fishing services industry on a par with other fisheries, such as commercial fisheries, overseen by the board. The board's current authority is over the guided sport fisherman, not over the guide. The board needs the authority to require more extensive reporting by guides and the ability to penalize, such as not renewing their license the next year, in order to get compliance with the reporting provision. The only regulation currently affecting guides is the requirement to register. A few things regulate guides in the areas of methods and means, such as prohibiting guides from fishing while they have clients on board. There is not the same authority over a guide as there is over other fisheries. This is an important management tool for the Board of Fisheries for the conservation and management of fisheries. MR. DAUGHERTY said the board has a limited source of data when it comes to sports fisheries. Currently, there is the authority to allocate between guided and unguided sport fisheries, but there is not enough information to make those allegations. The board is using bag limits, methods and means types of regulations in order to try to give nonguided residents a fair opportunity to fish, rather than making a state allocation. Number 1233 GERON BRUCE, Legislative Liaison, Office of the Commissioner, Department of Fish and Game, said the ADF&G supports CSHB 19(RES). Representatives from the ADF&G have worked with the guide charter task force, established by the Board of Fisheries, to look into some of these issues. That task force was involved with the development of this legislation. The bill would provide information to the ADF&G and to the board. Nonresident angling is growing at a regular rate of about 5 percent a year. A lot of that angling is conducted with the aid of guides. There is a lot of concern and interest in the state, among users and managers, in knowing the impact of this increased angling on the resource, specifically in knowing what opportunities are there for other users, especially resident users. Currently when the board asks for this information, there is not much the ADF&G can offer. MR. BRUCE explained that CSHB 19(RES) would allow the ADF&G to characterize the guiding industry in terms of the different regional aspects and operators involved. It would also enable the department to quantify the impact of the guided industry on particular resources in particular regions of the state, allowing the department to provide this information in a summary form to the board and the public. This would help policy makers make the best decisions regarding the utilization of resources for the common good. MR. BRUCE stated that CSHB 19(RES) was thoroughly discussed. He felt as much input went into this bill as any other piece of legislation he has seen. He did not know of any other legislation, especially one which breaks new ground, which would be wholeheartedly liked. This is a step that needs to be taken in the long-term interest of the guiding industry, other users in the state and the resource. MR. BRUCE said the effective date would fall toward the end of this calendar year, if the legislation was passed this year. Any time the ADF&G has any changes in their licensing system, they like to have it coincide with the calendar year because all license systems are administered on a calendar year. It makes a more orderly transition for those people affected and in regards to administration. The ADF&G would like to have an effective date of January 1, 1998. There would only be a short period of time remaining in the 1997 season. Number 1481 REPRESENTATIVE AUSTERMAN explained that CSHB 19(RES) was set up to do some good this year. If the ADF&G does not feel that there is enough time, or if they question whether or not it would work within the time frame, then he wouldn't object to this amendment. Number 1503 REPRESENTATIVE GREEN felt if this occurred, then line 30, page 8, would have to be amended. CO-CHAIRMAN OGAN suggested that Section 6 be deleted to eliminate the transition period. Number 1549 REPRESENTATIVE AUSTERMAN replied that if the effective date was changed to the first of the year, then some sections would no longer be valid. The normal fees from Section 2 would take place. Number 1576 CO-CHAIRMAN HUDSON made a motion to adopt a conceptual amendment regarding page 8, line 29, to delete "Section 6 all the way down to page 9, line 8, and underline ten, page 9, amend to read, Section 8, to read `takes effect January 1, 1998', and then under the same provisions." Number 1620 REPRESENTATIVE GREEN said, "I presume that mean also you'll remember those sections in your amendment. If you cancelling number six, then you renumber the sections accordingly." CO-CHAIRMAN HUDSON said, "I am renumbering all sections accordingly." Number 1639 CO-CHAIRMAN OGAN announced, having heard no objections, that the conceptual amendment was adopted to CSHB 19(RES). Number 1694 REPRESENTATIVE BEVERLY MASEK made a motion to adopt Amendment 2, which read: Page 3, lines 14 - 15: Delete existing language in Work Draft 0-LS0140\Q and insert new language to read: (17) regulating the sport fishing services industry for purposes of establishing information gathering tools related to the conservation, development, and utilization of fishery resources. Number 1759 REPRESENTATIVE AUSTERMAN referred to Mr. Daugherty's testimony on how important this section is. Number 1788 MR. DAUGHERTY explained that Amendment 2 would not put the guided sports fisheries and services industry on par with the other fisheries. It would prohibit substantive regulation of the sport fishing services industry. This amendment could be interpreted to weaken, rather than enhance, the board's authority. While the board needs information gathering tools, when this specific authority is given, it is likely to be interpreted as limiting the board's authority in that specific area, rather than adding to their authority over guided sport fishing. It would be interpreted by a court as a restriction on the board's authority. MR. DAUGHERTY said this change would not allow the board to regulate knowledge of the fishery such as fish identification, catch-and-release methods, and other areas where the board has expressed a desire to require some knowledge on behalf of the guided sports fish industry. The board currently has some regulations for guides such as the fishing prohibition while a client is on board. Those regulations might be challenged if this amendment were adopted. It might limit the Board of Fisheries to an information gathering service only in the area of sports fishing. MR. DAUGHERTY noted that the use of "established" in the amendment does not include implementing or enforcing. This would not give the board any tools. The board could require reporting and information gathering, but it wouldn't have any tools to make sure people complied. Number 1982 REPRESENTATIVE MASEK referred to the sponsor statement and said the amendment spells out the intent more clearly. In the bill it reads "as needed"; she felt it should be changed to "for purposes of establishing information". Right now the board has the ability to regulate. She did not feel there should be that much of a conflict with the proposed amendment. Number 2042 REPRESENTATIVE GREEN felt, from the testimony presented, that the Board of Fisheries did not have the authority that they needed for sports fishing. If CSHB 19(RES) is left, rather than modified by the amendment, then it definitely gives the Board of Fisheries authority. He felt the amendment would limit the board, and that is not the direction the committee wants to go. Number 2097 CO-CHAIRMAN HUDSON felt the purpose of the amendment would alter the bill so the industry would be regulated for information gathering tools. He felt that if the board ever established limitations, seasons or bag limits, this amendment would cause the bill to be contested in court. He felt CSHB 19(RES) should provide equal footing, good information and the ability to use that information to regulate for good biology. Number 2174 CO-CHAIRMAN OGAN referred to page 2, line 22, paragraph 12, where there is already the authority to regulate commercial sport, guide sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries. He asked if this gave the Board of Fisheries the ability to regulate the sport fishing guides. Number 2207 MR. DAUGHERTY said the current authority is over guided sport fishing. If you look at the legislative history of that bill and the way it has been interpreted, then the authority is over the actual fisherman not the person who is taken them out fishing. Number 2252 REPRESENTATIVE BARNES said the Board of Game and the Board of Fisheries only have the power which the legislature gives to them. The constitution says that we manage these fish and game resources on a sustained yield basis. So the boards have an absolute authority to manage fish and game based on sustained yield principles. She felt Mr. Daugherty said the Board of Fisheries does not have the authority to do this, that they would only be able to gather information under this section. She did not feel this was correct. The amendment adds language relating to regulation of the sports fish guiding services. She referred to paragraph (12), which regulates commercial, sport, guided sport, subsistence, and personal use fishing. She referred to Mr. Daugherty's testimony relating to paragraph (12) and to the constitution, and she said it did not ring true to her. Number 2378 MR. DAUGHERTY said the Board of Fisheries would certainly have the authority to manage the total fishery for sustained yield. The problem comes in when you treat different fisheries differently, you create different regulations for guided sports and sport. If someone made an argument that this bill could have been done without impacting the other fisheries differently or if there was a provision which limited the board's authority over the sport fishing services industry to information gathering tools, then any regulation dealing directly with restrictions on the guides would be subject to a potential court challenge, not over the guided sport fishermen, but over the guides themselves. Number 2458 REPRESENTATIVE BARNES stated that if at any time it looked like the Board of Fisheries or the Board of Game had the authority to regulate through exclusive use by allowing .... [testimony ends mid-speech]. TAPE 97-37, SIDE A Number 0000 CO-CHAIRMAN OGAN stated that this had been proven in court, the guide industry. Number 0029 REPRESENTATIVE GREEN said it is the committee's intent to not limit it. He reiterated that this issue has been brought before this committee with conflicting testimony from both sides. This amendment would tip the scales. The Board of Fisheries only has the authority given by the legislature. If the committee is going to limit their authority, that is a restriction. His did not think the committee wanted to do this. If the committee doesn't want to do that, then the committee doesn't want this amendment. Number 0099 CO-CHAIRMAN OGAN felt it was a policy call. He asked if CSHB 19(RES) puts the sport fishing industry on par with others, then where is the language regarding the commercial fisheries. Number 0131 MR. DAUGHERTY referred to AS 16.05.251(12) and said it regulates commercial sport, guided sport, subsistence and personal use fishing as needed for conservation, development and utilization of fisheries. It is located on page 18 of the statutes. Number 0193 CO-CHAIRMAN OGAN did not see the difference. If we have a guided sport in there, then why can't it be more broadly interpreted? He referred back to Representative Green's comment and said it is a policy call on whether the committee wants the board to gather information or to have more authority to regulate the industry. Number 0251 REPRESENTATIVE BARNES agreed that it was a policy call, but referred to the section with the underlined language, "regulating the sports fish services industry". She asked what kind of regulations the Board of Fisheries would be adopting under this language. Number 0290 CO-CHAIRMAN OGAN responded that it could be whatever they felt like; the legislature is giving them the authority. Number 0304 MR. DAUGHERTY stated that the Board of Fisheries currently has regulations which prohibit guides from fishing while they have clients on board. He said this is the type of regulations that the board would like to see more of and would like a firmer authority to adopt those regulations. The board would like to say that if you do not report, as required, then you can't get your license for the next year. The board would also like to see, in some cases, some basic knowledge of how to release a fish and how to identify fish. He said people come up from the Lower 48, who do not have that basic knowledge. Number 0367 REPRESENTATIVE BARNES foresaw big problems if the legislature left this language wide open in CSHB 19(RES). She thought that if the committee did not adopt Amendment 2, then the committee should spend a little time on what it is that they were willing to have the board regulate. This type of language would allow them to do a lot more regulating then she would want them to do. Number 0418 REPRESENTATIVE AUSTERMAN referred to page 2, line 22, (12), and said (17) was patterned on that language. Paragraph (12) talks about commercial, sport, guided sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries. The Board of Fisheries wants to do the same with the commercial end of it, the guides who are taking these sport fishing charters out on trips. Paragraph (17), on page 3, which Amendment 2 addresses, only deals with the conservation, the development and the utilization of those fisheries. This paragraph does not deal with the integrity of it, the safety of the fishery, but only the conservation, development and utilization of the fisheries. Number 0501 REPRESENTATIVE BARNES referred to the language, "as needed for the conservation of", and said the Board of Fisheries could decide, under this language, to limit the number of guides. She felt this would be unconstitutional. Different requirements could be implemented, but she did not feel a limit could be placed. She would oppose CSHB 19(RES) if it is left with the current language. Number 0549 MR. DAUGHERTY explained that if the Board of Fisheries attempted to adopt a regulation limiting the number of guides, they would still have to go through the Department of Law regulations review. The department does not approve a regulation if they believe it is unconstitutional. Clearly the legislature has already acted in the commercial fisheries to limit entry through the commercial fisheries entry commission, there is nothing like that for sports fisheries. At this point, he did not feel there would be anything which would support the Board of Fisheries doing this without some further action by the legislature providing that authority. Number 0611 REPRESENTATIVE BARNES responded that it was her experience that the board could conjure up almost anything. Number 0626 REPRESENTATIVE WILLIAMS felt CSHB 19(RES) provided an important tool for the board or for the ADF&G. He said he attempted a similar bill four years ago. The sports fishing services industry is getting so big that CSHB 19(RES) will help regulate those people going into the industry. Number 0672 REPRESENTATIVE BARNES responded that her sons' decision to leave the industry was their choice, not someone else deciding there would be limited entry into the sports fishery. She felt this could happen with the current language. Number 0694 CO-CHAIRMAN OGAN said, if the language is left as it currently is, the Board of Fisheries could say fishing could only occur on certain days. He thought it would be ill-advised to do a limited entry. The Owsichek case with the guides was proved. Number 0731 REPRESENTATIVE AUSTERMAN reiterated that it was not his intent to limit the number of guides. He was more than willing to put this language into CSHB 19(RES). If this is the major concern being raised, in reference to what the committee is doing with this bill and why this bill is here, then he is more than willing to add a phrase saying that the Board of Fisheries may not limit the guides without legislative approval. The industry has expressed this concern, they want free, open range. If that is the concern and that is what the committee wants to see with this bill, he will add this language. REPRESENTATIVE GREEN stated that then the sponsor would lose his support. Number 0808 REPRESENTATIVE FRED DYSON said two of his mentors in commercial fishing have said that limited entry has never been applied well in our state. It has always been done too late and enfranchises or monopolizes the utilization of the resource. The only valid reason for limiting entry into a fishery would be if the ADF&G could make a case that there are so many participants in it that it is practically impossible to manage the conservation of the resource. He thought the government had a responsibility to the conservation of the resource. He was convinced that the economic and the aesthetic decisions ought be left to the individuals. Number 0911 REPRESENTATIVE DYSON thought he would support the sponsor's language. Number 0918 CO-CHAIRMAN HUDSON felt the constitution would bar limited entry without an action on the part of the legislature. Only through action by the legislature did the state enact limited entry. The law would be constitutionally upheld that the Board of Fisheries has no powers to enact a limited entry provision. The board can establish a moratorium; everyone who was in the fishery now could remain in it but others would be excluded until the board biologically determined that something else was feasible. He felt the board could do this at the present time. He did not feel that CSHB 19(RES) created any new power, it merely creates an information gathering mechanism and a financial means to provide for that information. The bill puts guided sports fishing, in the regulatory schemes, on an equal footing with the other elements of people taking fish resources. Number 1003 REPRESENTATIVE BARNES said the constitution states that there should be no exclusive right of the fishery. The only exclusive right is occurs when people pass a constitutional amendment which allows limited entry. However, if the Board of Fisheries said that we now have too many guides and enacted a moratorium, then you are in fact setting up a regime of a limited entry system by grandfathering in those who are presently guides. This moratorium could go on for 20 to 30 years, and she felt this was wrong. There are better ways to manage the resource; she had no problem with bag limits, days that you can fish and things like that. She had a problem with allowing one Alaskan to have an opportunity that other Alaskans don't have. Number 1106 CO-CHAIRMAN HUDSON suggested that a moratorium was a time limitation and only for a period of time. We need to modify that, even for commercial fishing, if it doesn't already exist. The legislature needs someone who knows how a moratorium, limited entry and the constitutional elements work. Number 1145 MR. DAUGHERTY explained at this time the Board of Fisheries does not have authority to establish a moratorium on any fishery. They have frequently complained about their inability to do this. They would like to stop the growth of fishing on the Kenai River, but they do not have the authority to establish any type of moratorium. The Commercial Fisheries Entry Commission (CFEC) has some authority in commercial fisheries, and there is currently a bill which would expand that authority. For fisheries other than commercial fisheries, there is currently no authority for any type of moratorium. Number 1165 CO-CHAIRMAN HUDSON expressed concern that moratoria might lead the state into a limited entry of sorts. He still believed that a moratorium is essentially a time of cease-and-desist from fishing, which allows propagation of the fish. He suggested moving the bill, with the amendment and a statement that the committee recommend that the amendment be considered on the basis of a legal opinion concerning moratoria and the impact on limitations of entry. Number 1323 MR. BRUCE emphasized that his comments shouldn't be taken into the context of the limited entry discussion. He did not think it was an issue. He expressed concern about Amendment 2; the DOL said this amendment would jeopardize the ability of the board to take action. They could receive the collected information and want to shape the guided activity, in their activities, in a way to lessen impacts on other users and to conserve the resource. The ADF&G would not like to see that happen. They are not interested in collecting information for information's sake and putting it on the shelf. They want the information to be available to the policy makers at the Board of Fisheries level, who are acting under legislative direction. MR. BRUCE said the ADF&G would encourage the legislature to give them as specific a direction as the committee thinks they need in order for them to stay within parameters. He did not think the committee wanted to put the board in a situation where they can't act on the information which CSHB 19(RES) authorizes the ADF&G to collect and provide to them. He urged the committee to not take an action which would make it impossible for the Board of Fisheries to use the information in a regulatory manner. Number 1455 REPRESENTATIVE GREEN objected to Amendment 2. Number 1460 A roll call vote was taken on Amendment 2. Representatives Masek, Barnes and Dyson voted yea. Representatives Green, Williams, Joule, Hudson and Ogan voted nay. Representative Nicholia was absent for the vote. Amendment 2 failed to be adopted to CSHB 19(RES). Number 1479 REPRESENTATIVE MASEK moved Amendment 3, located on page 3, lines 14 to 15, after, "sports fishing service industry and commercial fishing industry as needed for the conservation, development, and utilization of fishery resource". This amendment would be placed right after, "sport fishing service industry and commercial fishing industry". Number 1499 REPRESENTATIVE WILLIAMS objected for purposes of discussion. He felt these were already regulated. Number 1516 REPRESENTATIVE MASEK referred to page 2, paragraph 12, "regulating commercial, sport, guided sports, subsistence, personal use fishing." She said she understood from the DOL that it regulates fishing but not the fishermen. "I think it would be important to put commercial fishing industry in that subsection as well," she added. REPRESENTATIVE AUSTERMAN understood from the DOL that this is already in statute, the reference to the commercial fishermen. CO-CHAIRMAN HUDSON asked if Amendment 3 amended Amendment 2. Number 1553 REPRESENTATIVE MASEK said this is a new amendment on page 3, line 14, "regulating the sport fishing services industry and commercial fishing industry as needed for the conservation, development and utilization of resource". Number 1595 MR. DAUGHERTY said commercial fishing is already covered under paragraph (12), which says regulating commercial, sport, guided sport, subsistence and personal use fishing for the conservation, development and utilization of fisheries. The reason why there isn't the same problem there as with guided sport is because commercial fishermen are actually landing the fish. Therefore, the board has authority over everything they do. With guided sport fishing, it is not the guide who actually fishes, it is the client, and this is why the Board of Fisheries needs the additional authority over the guides. Number 1625 A roll call vote was taken on Amendment 3. Representatives Masek and Barnes voted yea. Representatives Dyson, Green, Williams, Joule, Hudson and Ogan voted nay. Representative Nicholia was absent for the vote. Amendment 3 failed to be adopted to CSHB 19(RES). Number 1675 CO-CHAIRMAN HUDSON made a motion to move CSHB 19(RES) as amended with individual recommendations and attached fiscal notes, which he noted were not at odds with each other as he had first thought. The cost of the program balanced out with the money being brought into the program. Number 1697 REPRESENTATIVE BARNES objected to the motion. She said that until CSHB 19(RES) can be amended in the section of this bill, she would oppose it moving forward. Number 1726 CO-CHAIRMAN OGAN felt he was reasonably satisfied that the Board of Fisheries did not have the authority to do limited entry moratoria. A roll call vote was taken on CSHB 19(RES). Representatives Dyson, Green, Williams, Joule, Hudson and Ogan voted yea. Representatives Masek and Barnes voted nay. Representative Nicholia was absent for the vote. CO-CHAIRMAN OGAN announced that CSHB 19(RES) was moved from the House Resources Standing Committee. REPRESENTATIVE AUSTERMAN announced that he would be happy to work with Representatives Barnes and Masek to make them feel more comfortable with the bill.
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