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 He said in 1989, the legislature passed HB 112 which repealed the Big Game Guide Board and replaced it with the Big Game Commercial Services Board.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.