Legislature(2003 - 2004)
03/05/2004 03:35 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
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SB 303-BIG GAME SERVICES & COMM. SERVICES BD
CHAIR SCOTT OGAN announced SB 303 to be up for consideration. A
motion was made to adopt the CSSB 303(RES), version \D. There
were no objections and it was so ordered.
MR. HENRY WEBB, staff to Legislative Budget and Audit, said that
HB 442 and SB 303 are the same bill, but the markup happened to
the House bill.
CHAIR OGAN asked him to review the substantive changes for the
committee.
MR. WEBB started with the first change on page 2, lines 9 - 10,
which said the members of the board would not be holders of a
guide license.
CHAIR OGAN asked what private landholder really meant.
MR. WEBB replied that it means the owner of a large amount of
private land like a Native corporation.
CHAIR OGAN thought the term was too ambiguous.
SENATOR WAGONER said he still had a problem with it, too.
REPRESENTATIVE RALPH SAMUELS, sponsor of HB 442, said the former
guide board had a representative from a Native Corporation with
large land holdings that were used in the commercial hunting
industry. He offered to prepare a conceptual amendment to flesh
out what the committee wants it to mean or go back to the old
definition.
SENATOR WAGONER surmised the intent was, "used specifically by
licensed guides and transporters".
SENATOR ELTON said:
We want to make sure the private landholders who are
on this board do hold land that could be subject to
aircraft landings and boats going up and down the
river - horseback crossings. Those are the kinds of
people we really want.
CHAIR OGAN said they are talking essentially about Native
corporations.
SENATOR ELTON said he couldn't think of any other large
landholders who would be impacted.
SENATOR WAGONER said he thought it needed to be tightened up
with a definition.
REPRESENTATIVE SAMUELS agreed.
CHAIR OGAN said the Native corporations, the University, Mental
Health Trust lands are the types of large landholders that could
be affected by these activities.
SENATOR GEORGIANNA LINCOLN said Native corporations are a little
different than what the committee was talking about. She didn't
know if private landholders needed to be defined here.
SENATOR BEN STEVENS surmised that if they start down that road,
there would be a long ways to go.
REPRESENTATIVE SAMUELS broke in to say that the old language
says one member who represents Native landholders. The
University of Alaska and Mental Health Trust lands hold public
lands.
SENATOR WAGONER said he didn't mean to say they should be
included. He meant to say they are excluded from this.
SENATOR LINCOLN asked the committee about deleting "private" and
inserting "Alaska Native" on page 2, line 9.
CHAIR OGAN suggested thinking about it and moved on.
MR. WEBB said the next substantive change is on page 3, lines 6
- 10. The Division of Occupational Licensing advised him that
publishing an annual roster is an outdated practice and using
the Internet would be more cost effective. The next change on
page 3, lines 41, through page 4, line 1, offers the licensing
exam orally and deletes the need for an explanation for it.
CHAIR OGAN said the original intent is that some people might
not be able to pass a written test, but they would make a fine
assistant guide.
MR. WEBB said the next section on page 4, lines 3 - 10, gives
the board some authority to deal with a lot of the problems
the audit found like a code of ethics and written contracts.
Lines 22 - 27 on page 4 give flexibility to violations with a
tiered approach.
SENATOR LINCOLN asked if a person would have to be imprisoned
for more than five days in order for that to kick in.
CHAIR OGAN said that was correct.
MR. WEBB said the next change was on page 6, lines 6 - 7, which
provides some protection for the public with a selection of
bonds, insurance or property. Page 7, lines 20 - 21, adds
"current" before "first aid card".
CHAIR OGAN moved that as amendment 1 and asked if CPR [cardio-
pulmonary resuscitation] should be added.
MR. WEBB responded that the issue of what good CPR would do in
the field without a defibrillator had been discussed during
extensive meetings with the department.
We figured if you're living in a rural area and you
have to come in and take a CPR class and that's
another thing you have to do, it might not be worth
the expense to some people.
CHAIR OGAN related how a defibrillator saved his life.
SENATOR WAGONER added that he books a few remote charters and
carries a satellite phone to call the Coast Guard if necessary.
"So, if somebody has a heart attack on my boat and we
immediately call the Coast Guard, there's still a chance they
could be saved. It's not a stretch in some cases."
SENATOR LINCOLN asked if they were leaving it as a "current"
first aid card.
CHAIR OGAN replied that adding "current" was being discussed. He
asked if there were any objections. There were none and
amendment 1 was adopted.
MR. WEBB said the next change was on page 8, lines 19 - 20,
which provides another option to someone who wants to become a
Class A assistant guide by passing a board-approved course.
CHAIR OGAN asked why being in the military for three years out
of state counts toward the 10 years experience - on line 16.
MR. WEBB replied that language is in existing statute. Another
amendment on page 11, line 29, deletes "a" and inserts "any".
SENATOR LINCOLN moved the above language as amendment 2. There
were no objections and it was so ordered.
CHAIR OGAN brought up language on page 12, line 4, that says
"has breached a contract to provide big game hunting services or
transportation services to a client" in regards to the board
imposing disciplinary sanctions in a timely manner. He asked how
the board determines that a contract has been breached.
A client can accuse a guy of breaching a contract, but
unless it's been adjudicated that it's been breached,
it's kind of subjective disciplinary action. I would
hope just talking about it and putting it on the
record would be enough to say the legislative intent
was to, if you've adjudicated, go to civil court and
there's been some kind of an actual proven breach
rather than just an accusation of the breach.
MR. WEBB directed him to language on page 11 that says the board
has to have a hearing and asked the chair if that language would
satisfy his concern.
CHAIR OGAN answered it would if the intent is for the board to
adjudicate whether or not a guide breached a contract with a
client.
REPRESENTATIVE SAMUELS replied that the Division of Occupational
Licensing has people who actually investigate these issues.
CHAIR OGAN asked if the board would somehow be an arbitrator for
the purposes of disciplinary action.
REPRESENTATIVE SAMUELS stepped in and said that the board would
be able to discipline, but he didn't know what the standard of
proof would be for a breach of contract. Requiring a civil suit
to be filed would be getting away from the idea of the board
disciplining guides and that is one of the reasons for having a
board.
We wanted them to have some mechanism to go in and say
hey, look, guide A - you know, here's what he said he
would do and here's what he did. That's kind of where
we're trying to get to in this session.
CHAIR OGAN asked Mr. Paul Johnson if he was chairman of the
former board.
MR. PAUL JOHNSON indicated yes.
CHAIR OGAN asked if it was customary for the board to arbitrate
disputes between a client and a guide and sanction the guide
based on some kind of evidence that he had breached his
contract.
MR. JOHNSON replied yes, but three complaints were needed. But
as SB 303 is written, the guides need a contract rather than
just a hunt record.
CHAIR OGAN said he could see that being an arbitrator in
contractual disputes would take up a lot of the board's time. He
mused that a client could get ticked off because he didn't get
his animal that cost him $10,000 and all they have to do is file
a complaint with the board.
MR. JOHNSON replied that is why there is a written contract on
what lease services are being provided - like basic health and
safety, number of days, etc.
SENATOR LINCOLN pointed out that the bill refers to "a contract"
and asked if there is a way to be specific about what the
contract is. She suggested setting the issue aside for the
moment since the day was getting late.
CHAIR OGAN replied that they would continue until 5:30 p.m. and
then reevaluate where they were on the bill. He said that page
12, line 9, says that the guide acted incompetently and he felt
that was too subjective. Maybe it should be unethically.
REPRESENTATIVE SAMUELS responded that language had been changed
from "is incompetent", which is in existing statute.
CHAIR OGAN reiterated that he thought unethical behavior was a
better standard to discipline someone over.
MR. PAT CARTER, Alaska Professional Hunting Guides, elaborated
that the discussion revolved around whether the guide is
incompetent all the time or just for the one hunt.
CHAIR OGAN stuck to his guns saying that he thought unethical
was a better way to go and moved that as amendment 3. There were
no objections and it was so ordered.
CHAIR OGAN directed the committee's attention to page 12, line
28, and the word "innocent" in relation to misrepresentation.
MR. CARTER explained that discussion was that a guide should not
get punished for an innocent misrepresentation. However, the
Department of Public Safety raised the point that its tough to
prove something was intentionally done wrong.
SENATOR WAGONER moved to delete "innocent" on page 12, line 28
as amendment 4. There were no objections and it was so ordered.
MR. WEBB jumped back into the summary saying that page 13, line
26, was put back to 20 days from 40, because the Department of
Public Safety said evidence is generally gone after 40 days.
CHAIR OGAN suggested "or within 48 hours from returning to an
area that has communications from the field" and noted that some
guides have satellite phones and could report a violation
immediately.
MR. CARTER added that there was discussion about people who
might be in the field for two and a half weeks and be weathered
in for another five days. He noted that language on page 13,
line 25, says "promptly" in relation to reporting a violation to
the Department of Public Safety and that is why it went with the
20 days for the reporting timeframe.
5:20 p.m.
TAPE 04-22, SIDE A
SENATOR LINCOLN asked if the burden of proof is higher for
"knowingly" and why not just remove that word [page 13, line
24].
MR. CARTER responded, "What if the person doesn't know?"
SENATOR LINCOLN reiterated that her concern is with the burden
of proof.
MR. CARTER replied that the burden is higher, but it would be
unfair for a person to be punished or have to report a violation
they didn't know existed.
CHAIR OGAN thought that 20 days was a little arbitrary. He has
known people to have problems getting their paperwork in on time
when they are out in the field. He also didn't think a person
should wait 20 days to report a violation if he has a cell
phone.
MR. CARTER asked if he would be more comfortable changing
"promptly" to "knowingly failed to report to the Department of
Public Safety" and add "as soon as possible" on page 13, lines
24 - 25.
CHAIR OGAN agreed that addressed his concern.
SENATOR LINCOLN argued that language didn't really address the
problem, because "promptly" and "as soon as possible" mean
basically the same thing.
CHAIR OGAN said they would come back to that.
MR. WEBB directed the committee's attention to page 14, lines 5
- 8, expanding accountability for the transporters and putting
them on par with the guides. He suggested inserting "valid
Alaska" on page 14, line 18, in reference to an Alaskan hunting
license.
CHAIR OGAN moved to insert "valid Alaska" before "hunting" on
page 14, line 18 as amendment 5. There were no objections and it
was so ordered.
MR. WEBB directed attention to the next substantive change on
page 17, line 11, that deletes "or transportation services"
language, which separates guides from transporters for
violations. The following paragraph, (b), gives the transporters
their own responsibilities.
CHAIR OGAN directed the committee's attention to existing
language on page 17, line 28, which allows three guide use areas
in one year. He felt the language was too controversial to
change, but wanted to point out:
When a guide can do that, they can literally go into
an area and hunt that area really heavily of all the
sheep or most of the trophy rams or most of the trophy
bulls... and then move on to another area and I think
it's had a big negative impact on the game in
Alaska.... I'd love to see it two years, at least.
MR. WEBB pointed out that language on lines 23 - 25 clarifies
that a guide is not able to pull out of whatever of the three
areas he is hunting in that year.
MR. JOHNSON added that he thought it was important to be real
clear that a guide had 30 days to notify the department that he
would be conducting big game hunting services in an area so that
the board could consider the issue.
CHAIR OGAN asked him if he thought the board could react to
something like that in 30 days.
MR. JOHNSON responded that the statute would say registration
takes place at least 30 days before the hunt and that time could
be extended to 60 or 90 days by the board if it chose to do so.
CHAIR OGAN relented because it would lead to more controversy,
but said he would rather see it at least two years.
MR. WEBB pointed out in addition that language on page 18, lines
18 - 22 explains what guide use areas are and gives the board
the authority to change them. Page 18, lines 24 - 31, through
page 19, lines 1 - 5, contain language about predator management
and how it ties in with the Board of Game allowing a fourth area
for predator control.
CHAIR OGAN said he didn't think a wolverine was a predator.
MR. WEBB replied that wolverines are predators by definition and
he wanted to cover all the bases.
CHAIR OGAN jumped back to the issue of guide use areas on page
18 and stated:
The only problem I have with amending it [to] allow
the board the discretion to amend it as necessary is
some operators might want to come in and they'll say
oh, I need a bigger area. Let's take these two areas
and make it one area. I saw that on the board when I
was on there and, you know, and I wonder if we want to
give them that much discretion.
MR. CARTER said:
The intent behind this amendment was to allow the
board to amend the guide use areas as property
boundaries change. Right now, from what we were told,
is that since '94 there's been other boundaries that
have changed - lands sales, land transfers, that sort
of thing. And so the guide use area may not actually
be down what was a boundary once before. They said
they have no intent of changing them, but the board
may decide to change them and that was the intent of
including the language.
CHAIR OGAN said there is a lot of incentive for a guide to
petition the board to erase the line between two areas and if
he's well connected with the board or is a nice guy or something
- this opens that up to that type of potential abuse.
SENATOR LINCOLN moved to delete "wolverine" as a predator on
page 18, lines 26 and 28, as amendment 6. There were no
objections and it was so ordered.
MR. WEBB said that page 19, lines 10 - 11, gives the board
authority to establish transporter use areas and adopt
regulations to implement them. Currently, transporter use areas
are the same as guide use areas. Page 19, line 24, is language
from the Division of Occupational Licensing on how records could
be shared with federal, state and local law enforcement
agencies.
CHAIR OGAN also pointed out that instead of specifying fish and
wildlife enforcement agencies it applies to any law enforcement
agency.
MR. WEBB noted a further point on page 21, line 5, where
"usually" was deleted.
SENATOR LINCOLN, referring to page 20, line 25, asked Mr.
Johnson if a wolverine is considered big game and really wanted
to delete it there, too.
MR. JOHNSON replied that wolverine is big game in statute since
the late '70s. "It's not utilized too much, but I think once on
a rare occasion it is...."
SENATOR LINCOLN asked about an inconsistency on page 22, line
26, that says it's unlawful for a non-resident to hunt brown,
grizzly, mountain goat or sheep, but no other big game would be
listed. She asked if that is correct.
CHAIR OGAN responded that there has been a lot of discussion
about the rationale for requiring guides.
The rationale is either dangerous animals or dangerous
terrain and there's been a number of people that would
like to see required guides for moose. And they're
generally not a dangerous animal when wounded nor do
they live in too dangerous of a terrain compared to a
mountain goat or a sheep. So there has to be a
rational basis for requiring a guide. It can't be too
arbitrary. I think you make the argument that some of
the antler restrictions you might want to have a
person guide for a moose because the average hunter
can't tell a spiked fork from one that's got three
points.... I struggle with that myself sometimes.
MR. JOHNSON added that issue is under Title 16 and mountain goat
was added in 1994 after a long arduous struggle.
CHAIR OGAN said at some point they should discuss requiring
guides for moose. He brought the committee's attention back to
page 2, line 9, and asked what they wanted to do.
SENATOR LINCOLN said she wasn't going to get hung up over this
issue, but someone suggested two members representing non-profit
and for-profit Alaska Native landholders.
MR. JOHNSON explained when the task force dealt with this in
1989 under Henry Springer, it felt it was extremely important to
bring in the private landholders and it was very well
acknowledge that it meant the Native landholders. Those people
had many concerns including subsistence. Over time, other rural
members wanted Native landholders to be included. Two members
are desired because for one thing they have a substantial amount
of land and it would include and encourage people in rural areas
to become involved. "I don't think leaving it as it is is going
to complicate anything at all."
CHAIR OGAN suggested inserting, "represent private landholders
that are substantially affected by guided hunting activities,"
and then leave it to the discretion of the governor. He asked
Senator Lincoln if that is acceptable.
SENATOR LINCOLN replied that she has no problem with that
language, but it was pointed out that landholders has to mean
for-profit. The non-profits are not landholders. "I don't mean
to bog us down here, but I don't want later that technicality to
[indisc.] this up either."
MR. JOHNSON said he thought the amendment that the chair offered
would fit the intent.
SENATOR LINCOLN kept to her point saying that it could be
construed to mean a Doyon Limited, a CIRI; not a Tanana Chief's
Conference, not villages.
MR. JOHNSON replied, "The idea is those people who own private
lands for trespass...."
CHAIR OGAN announced that the committee had lost its quorum, but
he agreed with changes on page 12, lines 4 - 5 and noted that
the question on page 13, lines 24 - 26 hadn't been resolved.
5:50 p.m.
MR. ROBERT HARDY, representing himself, encouraged the committee
to consider other possibilities with which to regulate and
control the big game commercial service provider industry. SB
303 just creates another public board and doesn't address the
real issue of user conflict, which is the main problem occurring
in the field that is fed by aggressive expansion and
capitalization by the industry.
A means of controlling the industry through a joint
effort between the Department of Commerce and the
Department of Fish and Game needs to be considered. By
crafting tools under statute that could look at the
aggregate number of commercial service providers by
area where deemed necessary as determined through the
Board of Game process could go much further toward
addressing user conflict in the field. The legislation
at present doesn't take that step. There is no measure
within the current legislation that would effectively
control the industry or the conflict this expansion
creates. I would also like to say that before this
committee chooses to improve this bill, I would like
to see several changes made.
First on page 2, lines 6 and 9 - line 6 changes from
"1" to "2" licensed transporters, especially with
regard to the transporter use area authority that the
Big Game Commercial Services Board would have. Also on
line 9, change "two private landholder
representatives" to "one private landholder" and
define what that means. Also, I'd have a concern as to
the overly competitive nature, section 29, found on
page 18, lines 23 - 31, and page 19, lines 1 - 5,
creates. In my area, which is game management unit 13
in the Nalchina Basin, where I am a subsistence user
and also a registered big game guide, virtually all we
have left to hunt in that area are bears. Moose and
caribou are off-limits to non-residents from a guide's
standpoint and sheep are very low density.
Increasing competition for the species that is the
mainstay of our commercial viability is unacceptable.
There are other ways to address that issue through the
Board of Game process, such as two bear bag limits,
etc. etc. Some of the other changes that I would like
to see made, if at all possible, page 12, line 4 and 5
- the breach of contract stipulation - that needs more
clarity. It needs more definition.
Page 4, lines 8 - 10, that may actually violate a
privacy provision. I would like to know what
Department of Law has to say about that and then on
page 17, line 28, as far as the registration for guide
use areas, every calendar year - I'd like to see that
personally changed to every five calendar years. With
that said, I would like to thank you for your time,
Mr. Chair, and for hearing my concerns.
CHAIR OGAN asked him to send any written comments he has on his
concerns. He sympathized with his area 13 concerns with bears
and nothing else left to hunt. He asked if anyone else from the
public wanted to testify.
MR. DICK RORICK, Kodiak, said he supported the changes the
committee made and suggested adding one Native representing a
regional corporation and a village corporation to the makeup of
the board.
MR. MATT ROBUS, Director, Division of Wildlife Conservation,
said that the department worked with the sponsor as the CS was
put together and supports today's changes to the CS.
Both the Department of Fish and Game and the Board of
Game are on record supporting the reinstatement of the
Big Game Commercial Services Board.
SENATOR LINCOLN asked him if he supported the amendments to the
CS.
MR. ROBUS replied that he didn't have any problems with the
changes.
CAPTAIN HOWARD STARBARD, Commander, Alaska Bureau of Wildlife
Enforcement, Alaska State Troopers, said he worked with the
sponsor also and listened to the amendments and supported those.
On the 20 day issue on page 13, lines 24 - 28, he opposed 40
days for the reasons articulated. He also didn't think that
changing "promptly" to "as soon as possible" would address the
situation. The fact that the use of satellite and cell phones
was increasing made frequent communication common and he felt
they should leave "promptly" and "20 days" in. He suggested
instead of inserting "promptly" to use "as soon as possible
unless no other reasonable means of communication are
available."
CHAIR OGAN moved that as conceptual amendment 7.
SENATOR LINCOLN objected to ask what is meant by reasonable
means of communication. "A cell phone is unreasonable when
you're out there." She asked if that would cause a problem for
the board.
MR. JOHNSON replied that Captain Starbard understands the
limitations that are available to rural people who would have 20
days to report a violation and was confident he could work with
the amendment.
SENATOR LINCOLN withdrew her objection and amendment 7 was
adopted.
CHAIR OGAN announced that they were back to page 2, line 9, and
proposed inserting "two members who represent private
landholders that are affected by hunting activities".
MR. CARTER commented for clarification and consistency the
committee might consider "guided hunting or transportation
services".
CHAIR OGAN amended his motion to read, "that are substantially
affected by guided hunting or transportation services and who do
not hold a license issued under this chapter;".
SENATOR LINCOLN objected because the term "substantially" is in
the eyes of the beholder.
CHAIR OGAN amended his amendment to delete "substantially".
There were nods of approval. He asked if there were objections
to adopting amendment 8. There were no objections and it was so
ordered.
SENATOR WAGONER moved to pass CSSB 303(RES), version \D, from
committee with attached fiscal note and individual
recommendations. There were no objections and it was so ordered.
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