Legislature(1995 - 1996)

02/08/1995 08:07 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HRES - 02/08/95                                                               
 HB 102 - EXTEND BIG GAME COMMERCIAL SERVICES BOARD                          
                                                                               
 JEFF LOGAN, LEGISLATIVE ASSISTANT, HOUSE RESOURCES COMMITTEE, PRIME           
 SPONSOR, stated HB 102 extends the Big Game Commercial Services               
 Board (BGCSB) whose duties are set forth in AS 08.54.300-330.  He             
 said in 1989, the legislature passed HB 112 which repealed the Big            
 Game Guide Board and replaced it with the Big Game Commercial                 
 Services Board.  He explained HB 112 was the product of work by the           
 legislative task force on guiding and game.  The task force was               
 created to address conflicts between different groups profiting               
 from the harvest of Alaska's big game.                                        
                                                                               
 MR. LOGAN told committee members HB 112 included language to sunset           
 the board in 1993, but the legislature allowed a one-year extension           
 last year with HB 266.  Title 8, which regulates boards and                   
 commissions, allows the board one year after the sunset date to               
 terminate its operation.  He stressed unless the legislature passes           
 HB 102 this session, those who receive compensation from the                  
 commercial harvest of Alaska's big game resources will not be                 
 regulated.                                                                    
                                                                               
 Number 028                                                                    
                                                                               
 GEORGE UTERMOHLE, LEGISLATIVE COUNSEL, LEGISLATIVE AFFAIRS AGENCY,            
 stated HB 102 extends the termination date for the BGCSB.  He                 
 explained the BGCSB is the successor to the Big Game Guide Board              
 and is the brainchild of the legislative task force on guiding and            
 game, established by the legislature in 1988, to address the issues           
 the legislature felt were important regarding the commercial use of           
 the big game resources of the state.  He said during deliberations,           
 the task force reached three major conclusions.                               
                                                                               
 MR. UTERMOHLE said the task force determined that the commercial              
 use of big game was a valid and important use of the game resources           
 of the state.  The task force identified three classes of                     
 commercial users of big game including those who directly provide             
 services to big game hunters (the guides and outfitters), those who           
 provide transportation services to big game hunters (air taxi and             
 charter boat operators), and those who provide ancillary services             
 to hunters (lodge operators, videographers, etc.).  He stated the             
 task force decided all three groups should be regulated and                   
 provided for a revised board.                                                 
                                                                               
 MR. UTERMOHLE stated the BGCSB is a regulatory board within the               
 Department of Commerce and Economic Development and consists of               
 nine members.  He explained five members of the board are from the            
 regulated profession, one member is an ex-officio member of the               
 Board of Game, one member represents Native land owners, and there            
 are two public members.  He pointed out the basic duties of the               
 BGCSB is to administer an exam to applicants for all classes of               
 guide outfitter licenses and to determine the qualifications for              
 each of the minor classes of guide outfitter licenses.                        
                                                                               
 MR. UTERMOHLE told committee members that part of the                         
 responsibility of the BGCSB is to establish standards of                      
 performance for each of the regulated professions.  The BGCSB is              
 responsible for prohibiting unsportsmanlike and unethical conduct             
 among the regulated professions, for authorizing licenses for                 
 transporters and for issuing commercial use permits.  He added that           
 the BGCSB is responsible for imposing disciplinary sanctions on               
 members who are found to violate the statute or regulation issued             
 by the board.                                                                 
                                                                               
 MR. UTERMOHLE stated the primary discretionary duty given to the              
 BGCSB is the responsibility for establishing exclusive guide areas.           
 The legislative task force on guiding and game was in the middle of           
 their work, looking at the issues associated with the Big Game                
 Guide Board, when the Owsichek decision came down.  At that time,             
 the task force was too far along and it was too late in the                   
 legislative session for them to fully address that issue as part of           
 their initial charge.  Therefore, the legislature extended the task           
 force another year to look at the issue of exclusive guide areas.             
                                                                               
                                                                               
 REPRESENTATIVE JOE GREEN asked Mr. Utermohle to explain the                   
 Owsichek decision.                                                            
                                                                               
 Number 087                                                                    
                                                                               
 MR. UTERMOHLE explained the Owsichek decision arose out of the                
 practice of the former Big Game Guide Board establishing exclusive            
 guiding areas, which is an area where a single guide or a select              
 group of guides were given essentially a franchise to conduct                 
 guiding operations in that area.  He said Mr. Owsichek challenged             
 that policy under the common use provisions of the Alaska                     
 Constitution and the Supreme Court found Mr. Owsichek to be right.            
 The Supreme Court found that the system the board had set up                  
 violated common use and was essentially creating a closed class of            
 users for the use of resources in particular areas.                           
                                                                               
 MR. UTERMOHLE noted that in the course of the Owsichek decision,              
 the court set down basic guidelines which it thought might be a               
 constitutional approach to the issue.  He said the task force took            
 the limited guidance the Supreme Court gave them and proposed a               
 system in legislation that would allow for exclusive or limited use           
 areas.  He stated that legislation failed to pass.  Anticipating              
 that might be the result of any legislation to authorize exclusive            
 guiding areas, the task force gave the BGCSB the power to establish           
 these areas on its own by regulations but suspended that power for            
 one year hoping the legislation would authorize it by statute.                
 Since the legislature did not do that, the BGCSB has since                    
 attempted to develop appropriate regulations on its own.                      
                                                                               
 REPRESENTATIVE SCOTT OGAN asked Mr. Utermohle to clarify what an              
 exclusive area is and asked if those areas are in place now.                  
                                                                               
 MR. UTERMOHLE responded that he has not followed the actions of the           
 board since it was created.  He was not sure of the status of the             
 board's regulations.                                                          
                                                                               
 Number 125                                                                    
                                                                               
 REPRESENTATIVE ALAN AUSTERMAN stated the BGCSB has created the                
 areas but they have to be renewed fairly often, so they do not                
 become exclusive.                                                             
                                                                               
 MR. UTERMOHLE said the criteria given to the BGCSB as a result of             
 the Owsichek decision suggests that any system the board sets up              
 has to be of short term duration, have ample access for any guide             
 to be able to apply and qualify for that area, and have some sort             
 of return to the state for the limited access use of the game                 
 resources in that area.                                                       
                                                                               
 REPRESENTATIVE OGAN noted he served on the BGCSB for two years.  He           
 explained the BGCSB sets up areas which are called guide use areas,           
 but the areas are not exclusive.  He said guides are registered and           
 given three areas for a period of five years.  He added that anyone           
 can register in a particular area.  Therefore, no one owns the                
 rights to the area but they are limited to the area for five years            
 and at that time, they can then select another area.  He noted when           
 the Big Game Guide Board was in existence, guides would own the               
 real estate and have exclusive use of a certain area.  He said the            
 value of the area was so high because the hunting was good and the            
 area would be sold to another guide.  The Supreme Court determined            
 the guides were selling rights to the resource which belonged to              
 all of the people.                                                            
                                                                               
 CO-CHAIRMAN GREEN noted for the record that Representatives                   
 Nicholia, Davies, Williams, Ogan, and Austerman joined the                    
 committee shortly after the meeting began.                                    
                                                                               
 Number 164                                                                    
                                                                               
 MR. UTERMOHLE stated the BGCSB was first established with a sunset            
 date of 1993, which was four years after the board was created.  He           
 said the board was not extended in 1993, so it went into its wind             
 down year in 1994.  In 1994, the legislature extended the                     
 termination date one year to continue the board in its wind down              
 year, which is what it is in now, and during this period the board            
 should be preparing to go out of business.  He felt it was                    
 important for the committee to understand that if it is the                   
 decision of the legislature for the BGCSB to sunset, it is quite              
 important to address the issue of what to do with the functions of            
 the board.  He stressed existing statute cannot be relied on to               
 continue the present system.  He said either the entire guide                 
 licensing system must be repealed or all of the functions must be             
 transferred to the Alaska Department of Fish and Game (ADF&G).                
                                                                               
 MR. UTERMOHLE explained the powers for licensing and the regulation           
 of guide outfitters, transporters, and commercial use permit                  
 holders is so interdispersed between the department and the board,            
 a clean transition is not possible.  He stated it would be very               
 hard on the guide outfitters to clean up their affairs beginning              
 July 1 when they may lose their ability to hold a license.  It                
 would also be difficult for people to receive new licenses if there           
 still is a requirement that a person, in order to guide outfit in             
 the state, must have a license and commercial use permit.  He felt            
 those issues need to be addressed.                                            
                                                                               
 Number 190                                                                    
                                                                               
 REPRESENTATIVE AUSTERMAN wondered why the BGCSB was only extended             
 one year.                                                                     
                                                                               
 MR. UTERMOHLE responded he did not know.                                      
                                                                               
 REPRESENTATIVE OGAN stated the BGCSB suffers from preconceived                
 notions of the way the board formerly was run.  He said there was             
 favoritism on the former Big Game Guide Board and there was a                 
 member of the other house who had problems with the favoritism in             
 the past.  He felt the BGCSB deals with people on a fair basis and            
 takes a real hard position for crooks and bandits.  He noted the              
 BGCSB would give maximum sanctions against licenses or fines to               
 people who are violators.                                                     
                                                                               
 REPRESENTATIVE EILEEN MACLEAN wondered why the figures in the                 
 change in revenues section of the fiscal note fluctuates every                
 other year.                                                                   
                                                                               
 KARL LUCK, DIRECTOR, DIVISION OF OCCUPATION LICENSING, DEPARTMENT             
 OF COMMERCE & ECONOMIC DEVELOPMENT, responded the reason for the              
 fluctuations is that every two years, the guides and outfitters               
 renew their licenses and there is a peak in the revenue generated.            
 He said the transporters are one year licenses.                               
                                                                               
 REPRESENTATIVE MACLEAN said when looking at a fiscal note, one                
 looks at it on a yearly basis.  She expressed concern on this                 
 particular fiscal note because there is a drop in revenue every               
 other year and a double increase in revenue every other year.                 
                                                                               
 MR. LUCK replied the operating expense remains consistent each                
 year.  He said some of the licenses are two year licenses and when            
 those licenses are renewed, the department has a peak in that year.           
 In the off year, when the one year licenses are the only licenses             
 which renew, the department has a valley and that is why the                  
 revenue decreases in those off years.                                         
                                                                               
 Number 280                                                                    
                                                                               
 REPRESENTATIVE JOHN DAVIES asked if it is necessary for all of the            
 two year licenses be renewed in the same year.                                
                                                                               
 MR. LUCK stated the licenses all expire on the same date in a                 
 particular year and the department has gone to a two year period              
 for all of the licenses throughout the division.  Therefore, the              
 division can be in a cycle of bringing in revenue.  He said during            
 renewal periods, there is a dramatic increase in the division's               
 operating tempo.                                                              
                                                                               
 REPRESENTATIVE DAVIES clarified the two year system is preferable             
 for the division.                                                             
                                                                               
 MR. LUCK said that is correct.  He noted by using that system, the            
 division can do the job much more cost effectively and efficiently.           
 He added that the division has been able to combine certain                   
 functions such as issuing business licenses and professional                  
 licenses at the same time.  The division produces one piece of                
 paper, sends out one renewal form, and processes one check.                   
                                                                               
 CO-CHAIRMAN GREEN noted for the record that Representatives MacLean           
 and Barnes had joined the committee.                                          
                                                                               
 REPRESENTATIVE OGAN wondered if the general fund/program receipts             
 is the amount the division brings in.                                         
                                                                               
                                                                               
 MR. LUCK stated those figures represent all program receipt money.            
 He said the BGCSB is self-sufficient and added the board has been             
 more than self-sufficient over the last licensing period.                     
 Therefore, the division is reducing the board's fees accordingly.             
                                                                               
 Number 325                                                                    
                                                                               
 REPRESENTATIVE BARNES read from a letter she received from a guide            
 who said, "We have blown it.  We have squandered all of the money             
 trying to reinvent state sponsored exclusive guide areas and have             
 no more funds or time for responding to and prosecuting criminal              
 complaints.  This lack of priorities has taken its toll on the                
 industry."  She asked Mr. Luck to respond.                                    
                                                                               
 MR. LUCK said he was not familiar with the specific case the writer           
 was interested in.  He stated the division has been prosecuting               
 every case and added that the issue results from a disagreement               
 with the guide use area scheme the board has been attempting to               
 implement and has implemented.  He noted there is still some                  
 disagreement on the behalf of some guides.  He explained some                 
 guides want four areas instead of three areas or they would like to           
 change their areas within the five year period.  He pointed out the           
 BGCSB does have money and is self-sufficient.                                 
                                                                               
 REPRESENTATIVE BARNES continued reading the letter, "I am willing             
 to pay several hundred dollars for an annual renewed registered               
 guide outfitters license if the money will be spent to hire an                
 additional investigator or fund investigations."  She said                    
 somewhere in the letter the writer indicates that in most cases it            
 takes more than two years to prosecute a case.                                
                                                                               
 MR. LUCK responded each case has its own complexities and some                
 cases may take more than what one would think would be the                    
 appropriate time.  Other cases are as simple as someone who has               
 been convicted of a federal crime and has been prosecuted under               
 that statute.  In that case, the document comes over to the board             
 and the board can take action.  He said the resources available to            
 the division can always be increased if that is the will of the               
 legislators.  He noted the division increased its investigative               
 staff last year but it was not for the BGCSB.  The BGCSB has one              
 investigator and his case load totals approximately 80 to 100                 
 cases.                                                                        
                                                                               
 REPRESENTATIVE BARNES asked what the current number of guides are.            
                                                                               
 MR. LUCK replied in all categories of licenses, there are                     
 approximately 1,400 licenses.                                                 
                                                                               
 REPRESENTATIVE MACLEAN questioned the number of employees the                 
 division has.                                                                 
                                                                               
 MR. LUCK responded the division has 55 employees.                             
                                                                               
                                                                               
 REPRESENTATIVE MACLEAN noted the fiscal note indicates two full-              
 time employees.                                                               
                                                                               
 MR. LUCK stated the division has two licensing examiners who are              
 assigned to the BGCSB and one of those two is assigned other duties           
 also.  He explained all of their time is kept in a positive                   
 timekeeping, so the allocation of their expenses is to whatever               
 profession they are licensing.  He noted there are two licensing              
 examiners, one investigator, and the supervisors for those three              
 positions.                                                                    
                                                                               
 REPRESENTATIVE OGAN commented when there is a violation of state or           
 federal statutes, a guide is charged with a violation.  Many times            
 a license will be suspended until the BGCSB can hear the sanctions            
 on the licenses.  He said violators generally suffer the                      
 ramifications of the criminal action through the court system and             
 then at some point, a hearing officer hears the case and makes                
 recommendations to the board as to what the sanctions are on the              
 license.  He stated if a significant violation is involved, the               
 guide's license is usually suspended by the court, meaning they are           
 out of business which can cost a lot of money.                                
                                                                               
 Number 430                                                                    
                                                                               
 GERON BRUCE, REPRESENTATIVE, ADF&G, stated according to a study               
 just published called "An Economic Impact Analysis of the Big Game            
 Hunting Guide Industry in Alaska", the guiding industry in the                
 state contributes about $80 million a year to the state's economy.            
 He said when one looks at the revenue generated to the wildlife               
 portion of the fish and game fund, about 70 percent of the revenue            
 in fiscal year 1993 was from nonresident hunters who are a small              
 percentage of the total hunters.  He noted the guiding industry               
 provides a significant revenue into the fish and game fund which              
 then funds wildlife management in the state.                                  
                                                                               
 MR. BRUCE said with an industry of this importance and functioning            
 as a part of the state's tourism industry complex, it is important            
 to maintain the quality image of the guiding experience and ethical           
 standards for guides and the guiding profession.  He stressed the             
 BGCSB provides an important service in that area.                             
                                                                               
 MR. BRUCE pointed out the other area the BGCSB provides an                    
 important service is in spreading out the guiding effort across the           
 state's wildlife populations, so in conjunction with the                      
 department's wildlife managers, it is known when a particular                 
 population is over-exploited or is subject to hunting pressure that           
 it cannot sustain in the long run.                                            
                                                                               
 Number 474                                                                    
                                                                               
 REPRESENTATIVE BARNES wondered how frequently the department has              
 had to go to a Tier 2 hunting system for subsistence.                         
                                                                               
                                                                               
 MR. BRUCE responded the majority of the Tier 2 permits in the state           
 are in Unit 13 which is near Anchorage and also involves hunters              
 from Fairbanks.  He said there are 7,000 to 8,000 permits issued in           
 that area for hunting.  He noted the area comprises the largest               
 number of Tier 2 permits issued in the state.  He added there are             
 other Tier 2 hunts and in some cases, involve very small                      
 populations of sheep or goat in which the demand for hunting                  
 exceeds the ability to provide an opportunity for all of the users.           
 He reiterated the large Tier 2 hunt is in the Anchorage vicinity              
 and is in effect primarily due to the large population desiring to            
 hunt in the that area.                                                        
                                                                               
 CO-CHAIRMAN GREEN asked Mr. Bruce to explain what a Tier 2 hunt is.           
                                                                               
 MR. BRUCE explained the Tier 2 hunt takes place when the resources            
 are not available to support a reasonable opportunity for all                 
 resident hunters in the state.  The Tier 2 hunt says if a                     
 reasonable opportunity cannot be provided to all people, the hunt             
 should be prioritized for a certain group of people.  He said there           
 are three criteria applied to that group of people and noted that             
 the criteria is mentioned in the Alaska National Interest Land                
 Conservation Act (ANILCA).  The criteria includes a record of                 
 historic dependence on the resource, residency near the population            
 being hunted, and the availability of alternative resources.                  
                                                                               
 MR. BRUCE stated there is an application which people complete, a             
 point system is ascribed to that application, people are then                 
 ranked according to how they score on the points and then they are            
 given permits until the point is reached where the permits exceed             
 the capacity of the resource to support it.  For example, if the              
 department determines that X number of animals can be harvested,              
 there are 50 people who apply for the Tier 2 hunt and the point               
 system cuts off at seven, the department goes down from the highest           
 rank to seven and that is the number of permits awarded.                      
                                                                               
 REPRESENTATIVE BARNES asked how many guides there are under the               
 Tier 2 system in guide area 13.                                               
                                                                               
 MR. BRUCE responded he did not know.                                          
                                                                               
 REPRESENTATIVE BARNES asked Mr. Bruce if he was familiar with the             
 Owsichek decision.                                                            
                                                                               
 MR. BRUCE said he was generally familiar with the decision but had            
 not read the decision.                                                        
                                                                               
 REPRESENTATIVE BARNES stressed the state's constitution clearly               
 says the fish and game resources belong to all of the people for              
 their common use.  She felt when the Tier 2 system goes into                  
 effect, there is not an availability of that resource for all of              
 the people.  Therefore, what is truly happening is the exclusion of           
 Alaskans from a resource which belongs to them, not to outside                
 hunters.  She asked how constitutionally that can happen.  She                
 stressed once the Tier 2 system is put into effect, only the people           
 who qualify for subsistence can hunt in that area.                            
                                                                               
 Number 580                                                                    
                                                                               
 MR. BRUCE said although he is not a constitutional attorney, he               
 would try to respond to the question.  He stated in regard to the             
 Tier 2 system, the managers and policy makers have tried to fashion           
 a system that recognizes there are cases where the resources are              
 not abundant enough to support use for every single individual in             
 the state who wants to use them.  He explained they have tried to             
 balance the constitutional directive to accomplish that with the              
 realities of the population and devise a system that allows access            
 to people on some kind of an objective criteria which treats                  
 Alaskans equally.                                                             
                                                                               
 REPRESENTATIVE BARNES stressed Alaskans cannot be treated equally             
 under the criteria of the Tier 2 system.  She felt it could be done           
 if it was managed through the boards of fish and game based on bag            
 limits and seasons.  She said the current system is no less                   
 constitutional than what the state had with the exclusive guide               
 areas because the department is allowing some Alaskans the                    
 privilege of those resources over others.                                     
                                                                               
 CO-CHAIRMAN GREEN clarified the Tier 2 system goes into effect when           
 there is a limited number of harvest among animals and does not               
 exclude Alaskans for outsiders but prioritizes within Alaska.                 
                                                                               
 MR. BRUCE responded that is correct.  He said one has to be an                
 Alaskan resident to qualify for a Tier 2 permit.                              
                                                                               
 REPRESENTATIVE BARNES did not disagree with that point but added              
 that was not her point.  She clarified one has to be an Alaskan and           
 meet the criterion laid out in the statutes and ANILCA.  She noted            
 that part of HB 960 passed in 1978 is still law, as well as part of           
 the Hickel bill passed during special session.  She stressed                  
 because of those laws, as well as ANILCA, the system set up                   
 provides an exclusion of Alaskans over others.                                
                                                                               
 REPRESENTATIVE BARNES pointed out the resources belong to the                 
 people for their common use.  She said the legislative body has               
 delegated management authority to the boards of fish and game on a            
 sustained yield principle.  She stated if those resources cannot be           
 sustained for all of the people, the constitution has been                    
 violated.  She commented she cannot say she does not support                  
 exclusive use of the resources for the rural areas of the state and           
 on the other hand say she is willing, because it brings in money              
 for tourism, to allow guides to have a system that the rest of                
 Alaskans do not have.                                                         
                                                                               
 Number 686                                                                    
                                                                               
 REPRESENTATIVE OGAN stressed there is no guiding when the Tier 2              
 system goes into effect.  He did not understand how the Tier 2                
 system had any relevance to the discussion.  He stated there are no           
 exclusive guide areas as they were ruled unconstitutional by the              
 Supreme Court.  He said guides will continue to guide even if the             
 BGCSB is terminated and furthermore, if the BGCSB is terminated,              
 anyone could go out and serve as a guide just by buying a guide               
 license whether that person is qualified or not.  He pointed out              
 that all control of the guiding industry would be lost.  He added             
 that the BGCSB does set up criteria for certain game species that             
 requires guides.                                                              
                                                                               
 REPRESENTATIVE OGAN stressed there is no exclusive use.  He said              
 guides are allowed to pick three areas in the state and often when            
 there is a potential for overharvest, the BGCSB will work with the            
 guides to solve the problem.                                                  
                                                                               
 TAPE 95-11, SIDE B                                                            
 Number 000                                                                    
                                                                               
 CO-CHAIRMAN GREEN felt the committee needed to stay on the Tier 2             
 issue as it affects whether or not the BGCSB is extended, rather              
 than debate subsistence.                                                      
                                                                               
 REPRESENTATIVE BARNES said everyone knows that she believes the               
 system is unconstitutional.  She indicated she will continue to               
 fight the system until it goes back to the court and is once again            
 proved to be unconstitutional.  She said she cannot believe the               
 state has a system where some Alaskans cannot hunt and the guiding            
 industry is using the same animals that cause the Tier 2 system to            
 go into effect.  She stressed that is a cause and effect situation.           
 She reiterated the guiding industry is taking animals to the                  
 exclusion of other people through bag limits, seasons, etc., and              
 expressed belief that is what causes Tier 2 to go into effect.                
                                                                               
 REPRESENTATIVE DAVIES asked Mr. Bruce to explain how the take by              
 guides is regulated when the Tier 2 system goes into effect.                  
                                                                               
 MR. BRUCE stated when a population of animals is subject to a Tier            
 2 hunt, guiding is not allowed.                                               
                                                                               
 REPRESENTATIVE DAVIES wondered prior to the Tier 2 system going               
 into effect if there is an anticipation of a decline in the                   
 population affecting guides' ability to hunt.                                 
                                                                               
 MR. BRUCE responded there could be some adjustments in bag limits             
 and seasons which would apply to both people who are engaged in               
 guided hunts and people who are hunting on their own.                         
                                                                               
 REPRESENTATIVE DAVIES clarified there is an adjustment of the take            
 prior to the Tier 2 system beginning which applies to everyone.               
                                                                               
 MR. BRUCE replied that is correct.  He explained the adjustment is            
 through seasons, bag limits, and means and methods set by the Board           
 of Game.                                                                      
                                                                               
                                                                               
 Number 047                                                                    
                                                                               
 CO-CHAIRMAN GREEN asked if game area number 13 was to show a                  
 decline in the number of harvestable animals but that number was              
 not to the point of putting the Tier 2 system into effect, would              
 ADF&G reduce the number on bag limits to help preserve the                    
 population.                                                                   
                                                                               
 MR. BRUCE stated that is exactly the approach the wildlife managers           
 take.  The wildlife managers try to assess the populations and                
 trends in the animals and what the harvestable surplus is.  If that           
 harvestable surplus shrinks, the managers have to adjust the take.            
 Normally the adjustment is made in the total number of animals                
 taken and in the bag limits in the area.  He noted the area is                
 closed when the animals are taken, sometimes by emergency order.              
                                                                               
 CO-CHAIRMAN GREEN asked if there is a direct relationship between             
 guided hunting in an area and its susceptibility to going to the              
 Tier 2 system.                                                                
                                                                               
 MR. BRUCE stated he did not know, but would get the answer.                   
                                                                               
 REPRESENTATIVE DAVIES observed in regard to the constitutional                
 issue raised, there are often situations where different provisions           
 of the constitution appear to conflict with one another and                   
 decisions by the Supreme Court are needed to balance those                    
 conflicts.  He said the issue being discussed is a classic                    
 situation where Article 8 provides general access for all citizens            
 and section 12 seeds absolute authority over native American                  
 affairs to the Congress.  He stated those things are apparently in            
 conflict and that conflict is the ANILCA provisions derived from a            
 constitutional provision in the state's constitution as well.                 
 Therefore, it is not a conflict between Congress and the state's              
 constitution but rather a conflict between two provisions in the              
 state's constitution.  He stressed that is what needs to be                   
 balanced.                                                                     
                                                                               
 REPRESENTATIVE BARNES said in the McDowell case, the court did not            
 find a conflict between those two sections of the constitution and            
 it was determined that the resources belong to all of the people              
 for a common use.  She added that ANILCA was not enforced in the              
 state of Alaska and that is why there is the debate over a                    
 constitutional amendment.                                                     
                                                                               
 REPRESENTATIVE BARNES wondered where guides go when they are                  
 confronted with a Tier 2 system being put into effect.                        
                                                                               
 MR. BRUCE responded the guides go to one of the other areas they              
 are registered in.  He did not know if the BGCSB allows a guide to            
 add another area (a fourth area) when an area they are registered             
 in becomes unavailable for guiding because of a Tier 2 hunt.                  
                                                                               
 Number 110                                                                    
                                                                               
 REPRESENTATIVE OGAN said currently a point system is being reviewed           
 by the Attorney General's Office.  He pointed out that every                  
 regulation the BGCSB creates or changes is subject to intense                 
 scrutiny by the Attorney General's Office because of constitutional           
 questions.  He added that the Board of Game does make adjustments             
 in certain areas.                                                             
                                                                               
 CO-CHAIRMAN GREEN asked Representative Ogan if there would be more            
 of a problem without the BGCSB.                                               
                                                                               
 REPRESENTATIVE OGAN answered absolutely.  He said there would be no           
 control and any guide could hunt in any area.  He stated there                
 would also be an enforcement problem.  Currently, the fish and                
 wildlife protection officers know which guides are registered to              
 hunt and in what areas.                                                       
                                                                               
 REPRESENTATIVE MACLEAN stated within the analysis of the bill, it             
 says the BGCSB terminated June 1994.  She wondered what has                   
 happened since that time.                                                     
                                                                               
 CO-CHAIRMAN GREEN responded there is a one year wind down period              
 which is what is happening now.                                               
                                                                               
 REPRESENTATIVE BARNES agreed there are more controls by having the            
 BGCSB.  However, she disputed whether or not it is constitutional.            
                                                                               
 Number 155                                                                    
                                                                               
 CO-CHAIRMAN GREEN clarified that Representative Barnes' concern is            
 not with the BGCSB but rather with guiding in general.                        
                                                                               
 REPRESENTATIVE BARNES said it is unconstitutional to establish                
 guide areas in any shape, form, or fashion under the state's                  
 constitution.  She felt the Board of Game and the Board of Fish,              
 which the legislature delegated the management responsibility under           
 the sustained yield principle, have the responsibility to manage              
 those areas and any use which is ongoing in those areas.                      
                                                                               
 REPRESENTATIVE AUSTERMAN stated before the Owsichek decision, the             
 guide areas which were exclusive were just that...a family which              
 had been in Kodiak for 40 year had their sons taking over the                 
 operations and no one else was allowed in the area to guide                   
 hunters.  With the Owsichek decision, the exclusive areas were                
 totally eliminated and on a renewal basis, one can apply for a                
 guided area and there is no exclusivity.  He expressed confusion on           
 the constitutionality of the issue because any resident can hunt in           
 those guide registration areas.                                               
                                                                               
 REPRESENTATIVE BARNES stated when the state goes to a Tier 2                  
 system, the resource is limited to Alaskans and guides are                    
 harvesting these resources.                                                   
                                                                               
 REPRESENTATIVE AUSTERMAN pointed out that Alaskans are harvesting             
 the animals at the same time.                                                 
                                                                               
 REPRESENTATIVE BARNES stressed that out-of-state people are more              
 capable, through guides, of taking the resources than Alaskans.               
 She stated because of all the problems for Alaskans and the                   
 division it has caused among the state's people, she cannot find              
 that the use of big game guides is any less constitutional than the           
 original HB 960 which she introduced 17 years ago.                            
                                                                               
 REPRESENTATIVE DAVIES felt the issue before the committee is not              
 whether or not there are going to be commercial guided hunts.  He             
 stressed the issue is whether or not there is going to be any type            
 of regulation of that activity.  He said it was very clear that               
 given that activity has occurred, does occur, and is going to                 
 occur, the state is better off controlling that activity to some              
 extent.  He observed in looking at area 13 for example, if the                
 number of guides hunting in that area is limited, the amount of               
 game will be improved for resident hunters.                                   
                                                                               
 REPRESENTATIVE DAVIES agreed that when nonresident hunters take a             
 large portion of the resource, it reduces what is available for               
 Alaskans but he felt that is another issue for the committee to               
 decide.  He commented if the BGCSB does not regulate guides, then             
 those functions would probably fall to the fish and game boards who           
 already have plenty on their plate.  He felt it was important to              
 continue the regulation of the industry.                                      
                                                                               
 REPRESENTATIVE AUSTERMAN asked Representative Barnes if the BGCSB             
 is not renewed, what is her recommendation on what the state should           
 do in regard to regulating out-of-state hunters, ensuring their               
 safety with good registered guides.                                           
                                                                               
 REPRESENTATIVE BARNES responded it was obvious she will not support           
 to renew the BGCSB.  She reiterated the legislature has delegated             
 its responsibility for management of the resources to the Board of            
 Fisheries and Board of Game.  Therefore, those boards have to                 
 manage those resources for all of the people of Alaska at the same            
 time.                                                                         
                                                                               
 REPRESENTATIVE AUSTERMAN clarified she felt the legislature should            
 not renew the BGCSB and turn the regulating over to the Boards of             
 Fisheries and Game.                                                           
                                                                               
 REPRESENTATIVE BARNES answered that is correct.                               
                                                                               
 Number 257                                                                    
                                                                               
 JOE CLUTCH, PRESIDENT, ALASKA GUIDED OUTFITTERS ASSOCIATION, KING             
 SALMON, testified via teleconference and stated there seems to be             
 some confusion about what the functions and charges of each board             
 is.  He said the extension of the BGCSB is essential for a number             
 of reasons.  First, the extension is important for the sake of the            
 wildlife resources of Alaska that directly benefit from a properly            
 regulated guiding industry.  He stated the BGCSB is not a remake of           
 the pre-Owsichek Guide Board.  Rather, the BGCSB was specifically             
 structured in a way to prevent anything related to the pre-Owsichek           
 system from being reimplemented.                                              
                                                                               
 MR. CLUTCH explained the primary objective of the BGCSB is to                 
 ensure that the wildlife resources are accessed and utilized in a             
 rational and conservation oriented manner.  He said one of the                
 functions of the area system is to provide for a spacial                      
 distribution of effort, meaning there are no high concentrations              
 and an unlimited number of guides operating in one given area,                
 depleting the resource and then moving on to another area.  In                
 situations such as that, the result is conflicts in the field and             
 conflicts with other users.  He added that the area system allows             
 the department and other guides to measure and obtain a predictable           
 level of activity, instead of having high grading and surges in               
 activity which depletes the resource.                                         
                                                                               
 MR. CLUTCH told committee members there is an operations plan at              
 the beginning of each season.  Each guide receives this plan, which           
 indicates the number of species to be hunted and the number of                
 clients by species within the area.  The department can tabulate              
 the operations plans to determine if a potential for an overharvest           
 exists.  He stressed the objective is to avoid Tier 2 situations.             
 He said there is no guiding when there is a Tier 2 situation and              
 added it would be against the interest of anybody involved in the             
 guiding or transporting industry to see a Tier 2 situation exist.             
 He gave an example of how the system worked in Southeast this year.           
                                                                               
 Number 322                                                                    
                                                                               
 MR. CLUTCH said the regional biologist in Southeast tabulated the             
 number of prospective goat hunters by the registrants in areas of             
 Southeast and determined a potential for an overharvest existed.              
 He called a meeting of all the people registered for those                    
 respective areas, worked out a plan, the season continued and                 
 everyone was able to participate.  He stated the area system also             
 benefits enforcement efforts.  Each of the guides registered in an            
 area has to list their base camp, their respective spike camps,               
 their employees, the locations of the camps, the dates of                     
 operation, etc.  This reduces conflicts in the field and ensures              
 that only the credible, law-abiding guides are able to operate.               
                                                                               
 MR. CLUTCH stated the extension of the BGCSB is also important for            
 the general public interest, to ensure that commercial service                
 providers do so in a responsible manner.  He said it also follows             
 that a regulatory mechanism for commercial entities involved in the           
 taking of game serves the interest of the people who do not choose            
 to use a guide or a transporter.  Therefore, the interest of the              
 non-hunting public is also served by the BGCSB.  He added that many           
 people suggest the Board of Game alone can and should regulate the            
 taking of game.  He does not argue with that suggestion.  He                  
 pointed out the primary function of the Board of Game is to                   
 allocate the resources by setting seasons and bag limits.  This               
 function does not include, however, the setting of standards by               
 which commercial activities are conducted.  The Board of Game will            
 reduce a given user group's allocation if there is a biological               
 justification to do so.                                                       
                                                                               
 MR. CLUTCH noted that nonresident allocations are the first to be             
 eliminated when the resource is in short supply.  He added that the           
 nonresident allocations are the base of the commercial services               
 industry.  Unregulated access by commercial entities results in the           
 depletion of the allocations on which these industries depend.  He            
 stressed the BGCSB and the Board of Game serve separate but                   
 complimentary functions.                                                      
                                                                               
 Number 385                                                                    
                                                                               
 MR. CLUTCH said the next rationale for supporting the continuation            
 of the BGCSB is the economic argument.  Without this regulatory               
 board which ensures the rational utilization of the resource, the             
 allocation on which the commercial entities depend will be lost.              
 He reiterated that the commercial services industry generates                 
 between $80 million and $100 million per year directly to the state           
 and is approximately ten to twelve percent of the take of                     
 harvestable game animals.  He added that nonresidents pay 75                  
 percent of the annual budget of the Division of Wildlife                      
 Conservation from the sale of nonresident licenses and tags.                  
                                                                               
 MR. CLUTCH stated to date, the BGCSB has been able to operate in a            
 fiscally responsible and cost effective manner and has either                 
 broken even or generated revenues in excess of expenses, which is             
 the reason the board has been able to reduce the guiding license              
 fees in the upcoming regulatory cycle.  He said the committee needs           
 to understand that if the BGCSB is not extended, it will be another           
 relinquishment of the state's responsibility to the federal                   
 government.  All of the federal land managers (U.S. Fish and                  
 Wildlife, the U.S. Forest Service and the National Park Service)              
 have established a guide area system, which is a much more limited            
 system than the state's system.  He pointed out the federal land              
 managers limit specific federal areas by a competitive prospective            
 process with one guide per area and have very restrictive                     
 conditions relative to those guide area permits.  He explained                
 without the state board to regulate guiding activities, the federal           
 managers will undertake regulating guiding activities.                        
                                                                               
 Number 426                                                                    
                                                                               
 MR. CLUTCH felt there was a lot of confusion in regard to the issue           
 of constitutionality and what the new system does and how it                  
 relates to the Owsichek ruling.  He said nothing in the current               
 system resembles the pre-Owsichek system.  Anyone who holds a                 
 current guide license who meets the requirements set forth by the             
 BGCSB is eligible to register in up to three areas of their choice.           
 He stressed there is nothing exclusive about the system.  He noted            
 that if any members of the current guiding community have a problem           
 with this system, it would be that the system is not able to                  
 restrict the number of registrants to a desired level on state                
 land.  He noted the federal government does not allow an unlimited            
 number of guides to operate.                                                  
                                                                               
 MR. CLUTCH reiterated the existing registration system is not                 
 exclusive in any way.  Any number of guides can register for up to            
 three areas and seniority plays no part of the system.  Newcomers             
 are on exactly the same footing as established guides.  He added              
 there is no ability to transfer or sell these areas.  He explained            
 that in the event an area becomes closed due to changes in game               
 populations or change of seasons, registrants have the option to              
 cancel a registration and find another area to register for.                  
                                                                               
 REPRESENTATIVE BARNES stressed that she is not confused.  She knows           
 exactly what he is talking about and knows exactly what she was               
 talking about.  She noted that Mr. Clutch indicated there was                 
 nothing exclusive about the system.  She wondered what the criteria           
 is for becoming a guide and how does one get to be a guide if there           
 is not something controllable about it.                                       
                                                                               
 MR. CLUTCH responded an individual has to have served as an                   
 assistant guide for two years, submit an application to the                   
 Department of Commerce & Economic Development, take an examination,           
 pass the registered guides test and receive a guide license, and              
 pass an examination for certification within specific game                    
 management units within the state.  He stated the examinations were           
 designed by an independent testing firm and are fair and broad-               
 based.                                                                        
                                                                               
 CO-CHAIRMAN GREEN noted the ADF&G had indicated that having the               
 BGCSB is an assistance and if the board was terminated, either a              
 chaotic situation would occur such as prior to the board or ADF&G             
 would need to add staff to do what the board is currently doing at            
 a cost to the general fund.  He recalled an interesting remark as             
 to whether out-of-state hunters have an impact to the point of                
 creating a Tier 2 situation which then gets the state into a                  
 potential legal situation.  He felt the issue is one of whether or            
 not the BGCSB in its existence, with a continuation, would assist             
 in the game management and is not directed at whether or not there            
 may be a possible infringement upon a legal issue of preference to            
 subsistence users.                                                            
                                                                               
 REPRESENTATIVE OGAN made a MOTION to MOVE HB 102 out of committee             
 with accompanying fiscal note with individual recommendations.                
                                                                               
 REPRESENTATIVE MACLEAN OBJECTED.                                              
                                                                               
 CO-CHAIRMAN GREEN asked for a roll call vote.  Voting in favor of             
 the motion were Representatives Davies, Ogan, Nicholia, Williams,             
 Austerman, and Green.  Voting against the motion were                         
 Representatives MacLean and Barnes.  The MOTION PASSED 6-2.                   
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 There being no further business to come before the House Resources            
 Committee, Co-Chairman Green adjourned the meeting at 9:29 a.m.               

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