Legislature(1995 - 1996)

02/27/1996 11:10 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
             SSCR 2 DISAPPROVING EXECUTIVE ORDER 95                           
  REPRESENTATIVE GREEN announced  HSCR 2  to be up for consideration.         
 SENATOR LEMAN announced  SSCR 2  to be up for consideration.                  
 CATHERINE REARDON, Director, Division of Occupational Licensing,              
 testified that last year the legislature chose not to extend the              
 life of the Big Game Commercial Services Board.  That Board                   
 sunsetted on June 30, 1995.  Governor Knowles issued Administrative           
 Order 159 which assigned the regulatory functions of licensing and            
 disciplining hunting guides to the Department of Commerce and her             
 Division.  The reason for the Administrative Order was that                   
 requirements for guide licenses remained in statute, but the sunset           
 of the Board left no agency responsible for performing those                  
 functions.  The Governor believed it was in the best interest of              
 Alaskans to protect and manage the harvest of our vital game                  
 resources and to be sure that only trained and licensed guides were           
 involved to meet health and safety concerns.  At the beginning of             
 this session, the Governor introduced EO 95 which also transferred            
 the responsibilities of hunting guide regulations to the Department           
 of Commerce.                                                                  
 The reason for the Executive Order was to back up the                         
 Administrative Order by clarifying the current legal situation.  It           
 also clarified the statute for the public.  When the Executive                
 Order takes affect, the statute books will be updated to replace              
 the word "Board" with "Department" so that when the public looks up           
 the law, they will be able to see and understand it, MS. REARDON              
 Rejecting the Executive Order will do nothing to improve the                  
 opportunities for legislation which this issue needs.  It, in fact,           
 will cause some difficulties for the public.  If the Executive                
 Order goes into effect, that will in no way preclude the                      
 legislature from passing a bill improving the statutes, and                   
 therefore supersede the Executive Order eventually.  Rejection                
 would create a period of time, months perhaps, where the public is            
 unsure about whether guiding is an unregulated activity or whether            
 the Division is continuing to administer it.                                  
 Number 478                                                                    
 SENATOR TAYLOR asked what she understood sunset legislation to                
 mean.  MS. REARDON replied that the Board sunsetted and went out of           
 existence when the legislature chose not to extend it.                        
 SENATOR TAYLOR asked her why they are in the current process they             
 are in.  MS. REARDON explained that we are in this process because            
 although the Board went away, statutory requirements that people              
 have guide licenses, or that out-of-state hunters be guided by                
 licensed guides, remain.  Therefore, we can't have a situation                
 where we're demanding that the public satisfy a law, yet no one is            
 issuing the licenses that allow them to satisfy it.                           
 SENATOR HALFORD asked if that was consistent with opinions of                 
 attorney generals under the last four governor's since the sunset             
 law was passed or is that the opinion of the new administration.              
 MS. REARDON said she couldn't comment on the opinions of all the              
 attorney generals in the past, but it's consistent with this                  
 Department of Law.                                                            
 SENATOR HALFORD asked if she found any opinion other than the one             
 she has after the fact agreeing with that position.  MS. REARDON              
 replied that she did not do a lot of research into previous legal             
 opinions.  She left that to the Department of Law.                            
 SENATOR HALFORD said this Board had nine members, but it had two              
 vacancies, and then it had several other people who were to expire            
 on June 30, 1995.  By the time it actually sunsetted, it probably             
 didn't have a working majority.  He asked if the Governor made any            
 appointments to this Board during the last legislative session.               
 MS. REARDON replied that the Governor did not make any appointments           
 during the last session, but there was a working majority, as                 
 people remain on the Board until they are replaced.  There was,               
 indeed, a Board meeting two days before the sunset.  The new                  
 administration had numerous appointments to make and she didn't               
 think having some vacancies on the Board was indicative of any                
 greater or less interest than other vacancies that existed at that            
 SENATOR HALFORD stated that the Board had two vacancies, two people           
 expiring, and had two other members of the Board who had in writing           
 indicated they supported the sunset of the Board.  That was six out           
 of nine either not there or in support of discontinuing the Board.            
 SENATOR TAYLOR said there is a much broader perspective that must             
 be contemplated which is the separation of powers between the                 
 executive and the legislative branches.  The entire substance and             
 basis for this entity revolved around "sunset legislation" which              
 the State does with many of its boards.  It requires that the                 
 legislature on a frequent basis review the necessity for the                  
 existence of the board or commission, and if there is no need for             
 it to continue, the failure to act results in termination of the              
 board through the sunsetting process.  To tolerate this end run               
 action that has been taken is to forfeit a significant portion of             
 the policy making authority of this legislature.  To have it done             
 unilaterally and without consultation with the legislature is even            
 of more concern.  This is a matter of legislative prerogative in              
 the policy setting arena within the State and not a matter of                 
 executive order.                                                              
 Number 529                                                                    
 SENATOR LINCOLN asked if the Executive Order is not upheld, what              
 happens to the guiding.  MS. REARDON replied that would be an issue           
 of dispute, but the administration's position is that the                     
 Administrative Order that was adopted last June would remain in               
 effect and that the Department of Commerce would continue to                  
 regulate guiding.  She said there is litigation in court on this              
 issue right now.                                                              
 SENATOR LINCOLN asked what were the differences of opinion.  MS.              
 REARDON replied that some people feel the administrative order was            
 not appropriate and, therefore, there would be no regulation of               
 guiding.  The Administration clearly feels that the Administrative            
 Order was constitutional or else the Governor would not have done             
 it.  They will continue to license guides as they are now.                    
 SENATOR TAYLOR asked if it was the Governor's intent to dismiss or            
 fail to prosecute in the litigation that is currently ongoing                 
 concerning the guide boards.  MS. REARDON said she didn't                     
 understand all the details of his question, but the State is the              
 defendant in this litigation.                                                 
 SENATOR TAYLOR stated that he has seen the State spend a lot of               
 money preparing to litigate only to drop the matter at the last               
 moment.  MS. REARDON said she didn't know what action the Governor            
 and his Department of Law would choose to take.  They feel                    
 confident that the Administrative Order was constitutional and feel           
 a lot of concern about a totally unregulated hunting guide industry           
 and the impact that will have on Alaskans and Alaskan game.                   
 SENATOR HOFFMAN said this industry is purported to represent over             
 half a billion dollars income to Alaskans over the past few years.            
 He has a letter from Gary King, Jr., President, Alaska Professional           
 Hunter's Association, saying they did a survey of the working                 
 members of their association.  They received 79 percent of the                
 guide outfitters were registered guides and 21 percent were master            
 guides.  They strongly opposed SSCR 2.  He wondered from their                
 standpoint and from the Administration's standpoint how their                 
 industry representing half a billion dollars to the State was going           
 to be protected if we do adopt the Resolution.  MS. REARDON replied           
 that was the exact concern that led to the Governor's                         
 Administrative Order and then the Executive Order.  That there                
 would be fewer out-of-State and out-of-Country folks hiring                   
 Alaskans to guide them, that people from out-of-state might just              
 set up shop guiding because it was unregulated, that there might be           
 more problems in rural areas with folks flying in to guide and                
 doing a lot of hunting that they didn't have the experience to do             
 safely and without interfering with local communities, that Alaska            
 would be a lot less appealing to big game hunters who spend                   
 thousands of dollars to go on hunts.                                          
 SENATOR HOFFMAN said it seemed to him that by not doing this we are           
 taking potentially a half a billion dollars out of the pockets of             
 Alaskans.  Jobs are hard enough to come by and for the legislature            
 to disregard the economic benefits of a half a billion dollars to             
 the State's economy doesn't seem to be the right thing to do.                 
 TAPE 96-20, SIDE B                                                            
 Number 580                                                                    
 REPRESENTATIVE DAVIES asked if there was further utility in the way           
 this industry has regulated itself having to do with the orderly              
 establishment of hunting areas and of trying to maintain an even              
 and equitable pressure on the game population, itself.  MS. REARDON           
 replied that in addition to determining the qualifications of                 
 guides and licensing them, the State licenses guide use areas.  In            
 that way it has helped enforcement with knowledge of who is                   
 permitted to guide where.  It does allow for regulation and game              
 REPRESENTATIVE DAVIES said the House had hearings on the Kenai                
 Peninsula with fisheries in the Kenai River and the fact that there           
 is such a large pressure on the resource that they would have to              
 consider some kind of limited entry approach.  The existence of the           
 Big Game Commercial Services Board has helped to forestall that               
 Number 563                                                                    
 REPRESENTATIVE OGAN commented that he had the same concerns and he            
 would not be supporting this legislation if he thought they were in           
 any way letting the guide industry go down the tubes.  There is a             
 bill that will place some parameters on the guide industry and he             
 felt confident it could be worked out this year.                              
 REPRESENTATIVE DAVIES asked if there was anything in having the               
 Executive Order stand that would prevent that legislation from                
 occurring.  REPRESENTATIVE LONG asked, aside from the fact that               
 there is a bill being drafted, what protection do people have in              
 the interim.                                                                  
 REPRESENTATIVE OGAN replied that the Administrative Order would               
 stand until that issue is settled in the courts.  A long time                 
 before that issue is settled there will be legislation.                       
 Number 536                                                                    
 GEORGE UTERMOHLE, Legislative Affairs Agency, stated that the                 
 problem that arises with the Executive Order they are considering             
 is that last year the Big Game Commercial Services Board expired.             
 The regulations which that Board enforced remained on the books               
 without an agency with authority to enforce them.  At the                     
 Governor's Administrative Order to resolve the issue, there was a             
 transfer of legal functions from the Board to the Department.  The            
 Administrative Order is not provided for by statute or by                     
 constitution.  It has no more affect than a memo from the Governor            
 with a number on it.  The status of guide outfitters and related              
 occupations is very much up in the air and is implied to be                   
 repealed by the sunset of the Board.  Subsequent actions by the               
 Governor to maintain regulation are currently subject to litigation           
 and there is legitimate basis for challenges to his actions.  The             
 Executive Order is an appropriate order transferring functions                
 between an occupational licensing board and the Department.  The              
 effectiveness of the Executive Order is in question because he's              
 transferring responsibilities which may or may not exist at the               
 present time.                                                                 
 A key provision of the Executive Order essentially ratifies                   
 regulations adopted by the Department on expiration of the Board.             
 At that time the Department continued regulation of the industry by           
 adopting regulations.  It is questionable whether or not the                  
 Department had the authority at the time to issue those regulations           
 and continued regulation of the industry is in doubt.                         
 By ratifying the regulations in the Executive Order the Governor              
 may well be exceeding the authority of the Executive Order power by           
 attempting to change the law rather than just transferring                    
 SENATOR HALFORD asked how this same operation would affect all the            
 other boards, commissions, and agencies that are under the sunset             
 provisions if it would not be rejected.  MR. UTERMOHLE replied that           
 it would add another layer of complexity to this unresolved issue.            
 The problem comes from the ambiguous language of the sunset statute           
 which provides for termination of boards, but is silent as to the             
 affect of that termination on the statutes that a board enforced.             
 Heretofore, it has been the opinion of the Attorney General that              
 when a board is terminated, the functions of that board also                  
 terminate and any licensing functions performed by the board cease.           
 Number 480                                                                    
 SENATOR TAYLOR said he thought it was crucial that the legislature            
 reassert itself as a policy making body.                                      
 REPRESENTATIVE DAVIES said he disagreed that this action was done             
 in a confrontational way.  He characterized it as an attempt to               
 rescue a situation where there is a very important industry and the           
 process they are going through today is one that is contemplated by           
 the constitution.  The Governor can institute executive orders and            
 the legislature has the prerogative to turn them down.  This is the           
 normal legislative process.                                                   
 He asked what ambiguity in the sunset statutes he was referring to            
 with his previous comment.  He asked what authority is granted by             
 the legislature within statutes to the Governor to proceed to                 
 follow the statutes.  Can the Department take on the authority to             
 administer statutes through issuing regulations.  MR. UTERMOHLE               
 answered that the sunset legislation provides for expiration of               
 boards and commissions.  The rationale is that the public was being           
 imposed upon by ever increasing numbers of boards and the                     
 regulations they impose.  As part of the sunset process the                   
 legislature is to make a determination on a regular basis as to               
 whether or not the boards would continue.  Our statutes, like a               
 majority of statutes in other sunset states, don't address what               
 happens to the statutes the boards adopt.                                     
 REPRESENTATIVE DAVIES asked him if he meant statutes or                       
 regulations.  MR. UTERMOHLE replied that he meant statutes; that              
 the regulations created by the board disappear with the board.                
 Statutes that the board enforces stay on the books.  This is the              
 ambiguity he was referring to.                                                
 The Attorney General in this state and other states have taken the            
 position that those statutes are implied to be repealed and                   
 Number 439                                                                    
 REPRESENTATIVE OGAN reiterated that he is committed to cleaning up            
 the ambiguity.  He worked hard last year to keep the guiding                  
 industry headed right.                                                        
 MR. UTERMOHLE continued by saying that the sunset law does not                
 provide for successors to an expired board and does not provide               
 authority to the Department of Commerce to assume responsibility              
 for the expired licensing functions.  The one time a sunset board's           
 functions were transferred to a department was when those functions           
 were actually shared in the first place and the department was                
 statutorily assigned those functions.                                         
 REPRESENTATIVE DAVIES asked, assuming the statutes remain on the              
 books, would it be appropriate for the Department to take on that             
 regulatory power.  MR. UTERMOHLE answered without those powers                
 being transferred from the board to some other entity by law he               
 didn't see how that could occur.                                              
 SENATOR LINCOLN asked if he knew how long it would be before there            
 would be a decision in court.  She said they might be making a                
 decision now that might need undoing later.  MR. UTERMOHLE said he            
 was aware of one case with the Big Game Services Board sunset issue           
 and it is still in the early stages in Superior Court.  It would be           
 a number of years before the issue reaches the Supreme Court.                 
 Number 350                                                                    
 SENATOR TAYLOR asked if the legislature rejects this Executive                
 Order and passes legislation resolving the issue, would the court             
 case become moot at that point.  MR. UTERMOHLE replied that would             
 maintain the status quo in the case because it regards the                    
 authority of the Governor to transfer functions under                         
 administrative order.                                                         
 SENATOR TAYLOR asked if they passed legislation resolving that                
 would that still move forward.  MR. UTERMOHLE said it would depend            
 on the particular issues in the case.                                         
 REPRESENTATIVE WILLIAMS moved to pass HSCR 2 from Committee with              
 individual recommendations.  REPRESENTATIVE DAVIES objected.                  
 REPRESENTATIVE GREEN asked for a roll call vote.  REPRESENTATIVES             
 KOTT, OGAN, WILLIAMS, and GREEN voted yes; and the motion passed.             
 SENATOR PEARCE moved to pass SSCR 2 from Committee with individual            
 recommendations.  SENATOR HOFFMAN objected.  SENATOR LEMAN asked              
 for a roll call vote. SENATORS HOFFMAN and LINCOLN voted no;                  
 SENATORS TAYLOR, HALFORD, FRANK, PEARCE, and LEMAN voted yes and              
 the motion passed.                                                            

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