Legislature(1995 - 1996)
02/27/1996 11:10 AM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 effect, the statute books will be updated to replace the word "Board" with "Department" so when the public looks up the law, they will be able to see and understand it, MS. REARDON said. 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 time. 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 a half billion dollar 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 a half 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 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 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 management. 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 situation. 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, Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, stated 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 functions. 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 Mr. Utermohle 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 unenforceable. 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 NICHOLIA, LONG and DAVIES voted no; REPRESENTATIVES AUSTERMAN, 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.