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.