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Wednesday, July 13, 2005
University of Wyoming
Rochelle Athletic Center
Laramie, Wyoming
Senator Bruce Burns, Cochairman
Representative Jim Slater, Cochairman
Senator Stan Cooper
Senator Mike Massie
Representative Kathy Davison
Representative Bill Thompson
Roger Sebesta
Janet Hartford
Terry Pollard
Ken Raymond
Jay Lawson
Lynda Cook, Staff
Attorney
Representative Kermit Brown
Please refer to
Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.
Chairman Slater called the meeting to order at 8:30 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Jay Jerde, Deputy Attorney General, apprised the committee on the status of the case Shutz v. Wyoming Game & Fish Commission. The case involved a non-resident hunter who brought suit against the Commission claiming that the regulations allocating hunting licenses between resident and nonresidents, and the statute requiring nonresidents to utilize a guide in wilderness areas, are unconstitutional and in violation of the Equal Protection Clause and the dormant commerce clause. The district court had held that the statutes were constitutional because they were rationally related to a legitimate state interest and because hunting licenses were not an article of commerce. However, the 9th Circuit court of appeals recently held that hunting did involve commerce and therefore allocations systems treating residents and non-residents differently would be subject to strict scrutiny when reviewed by a court. This means they would be found unconstitutional unless they were narrowly tailored to meet a compelling state interest. Shutz appealed the Wyoming district court ruling to the 10th Circuit court of appeals hoping they would apply the 9th Circuit's reasoning.
In April, the federal government passed a rider to the appropriations bill designed to clarify that states may treat non-resident hunters differently from resident hunters, and that doing so would not affect commerce.
On July 11, 2005 the 10th Circuit court of appeals handed down a decision in the Shutz case. (Appendix 3). They held that Mr. Shutz did not have standing to challenge the guide requirement statute because he had not been affected by it. They held that the differential allocation of hunting licenses did not offend the equal protection clause of the constitution because they were rationally related to a legitimate state interest. Finally, they held that Shutz's challenge under the commerce clause was moot since Congress clearly spoke to the subject in the appropriations rider.
Mr. Jerde expressed concern that the guide statute may be challenged again by someone who actually was affected by the requirement, so that issue is not necessarily settled. With respect to the differential allocation of hunting licenses between residents and non-residents, that issue was almost certainly settled for good.
Mr. Jerde indicated that the ongoing cases in Arizona, Nevada, Illinois, Kansas and North Dakota would likely be wound up shortly with the same result as the Shutz case.
Don Willis, rancher from Sybille Canyon, testified about his concerns in the outfitting industry. His biggest concern was the predators (specifically coyotes) are not being controlled properly. With land values increasing, land is being purchased by people who do not use the land for ranching anymore. Because the ranchers are the ones who kill coyotes because it is necessary for their herds, the coyote population is booming. The result is that there are fewer ranchers killing fewer coyotes and the population is increasing. He asked the committee to consider supporting a bill before the Agriculture Committee that would increase funding of predator control. Mr. Willis provided a packet setting forth the problems of predator control in Wyoming. (Appendix 4)
Jerry Palm, rancher and outfitter from Elk Mountain, provided written and oral testimony. (Appendix 5). He testified that there are two main issues that need to be addressed. First, outfitters need a consistent supply of non-resident licenses so their clients can be repeat customers. Second, landowners should be rewarded for providing habitat for game animals through licenses set aside for their guests and clients. Without a consistent supply of licenses for their clients, outfitters cannot maintain a business.
Sy Gilliland, Wyoming Outfitters and Guides Association testified that he is a former member of the Wyoming Board of Outfitters and that he lobbied to have the Board created in 1989. He stated that the Board was created because, at the time, relationships were strained between outfitters and the Game & Fish department. The other compelling factor was that unlicensed outfitters were not being controlled, and this was hurting the industry. The framework for the board was to require licensing, act as an independent board, produce an annual report, and increase the percentage of non-resident hunters using outfitting services. The biggest concern at this time is the WOGA's perception that the board is not enforcing the license requirements adequately. Instead, they believe the board is focusing on punishing licensed outfitters for minor violations rather than tracking down and issuing citations to unlicensed outfitters. Mr. Gilliland is concerned that an attorney from the attorney general's office has advised the board that their primary mission is to regulate licensed outfitters rather than investigating unlicensed outfitters. He believes that it is time to turn the enforcement duties of the board back over to the Game & Fish department because they have clear law enforcement capabilities. Mr. Gilliland believes that Outfitter Board investigators do not have the authority to enter private lands while game wardens do have that authority. Jay Lawson did not know whether this assertion was true or not.
The Board heard testimony from several other outfitters about specific cases where they notified the board of unlicensed outfitter activity and the board failed to issue any citations. These included blatant advertising for services on the Internet by unlicensed outfitters.
The WOGA made the following proposals to the committee:
1. The Board of Outfitters should be more of a better business bureau for hunting complaints, handling complaints by hunters about their experiences with licensed outfitters.
2. The Board should be made up of outfitters only.
3. Term limits should be imposed on Board members.
4. Licensing should be contracted out to another agency like Game & Fish.
5. Enforcement should be handled by Game & Fish wardens.
When asked how this would work given Game & Fish's limited budget, Mr. Gilliland stated that they had not spoken to anyone at Game & Fish about this proposal.
Gary Amrine, Chairman of the Board of Outfitters, testified that he did not believe the board had failed in its enforcement duties. The board currently has several memoranda of understanding with other law enforcement agencies to assist in investigations. He stated that the problem with prosecuting unlicensed outfitters is the level of evidence necessary to obtain a conviction. While he could not discuss the details of the individual cases brought up by the outfitters, he said it was not as simple as just writing a ticket. Mr. Amrine provided written testimony after the meeting. (Appendix 6). Other comments from the board's executive director were provided to the committee. (Appendix 7). Mr. Amrine stated that there should be a way to increase the board's effectiveness through increased penalties and a broader scope of authority for investigations and citations, but the solution should come from a consensus approach between the board, the outfitters association and the Game & Fish department.
Ron Arnold, Chief Fiscal Officer of the Game & Fish department, handed out the hunting license application package that clearly informs hunters that they need to hire only licensed outfitters. (Appendix 8). Ken Raymond handed out a letter to the committee that reflected the concerns of his constituency of landowners. (Appendix 9).
The Committee recessed at 11:40 am for lunch and was called back to order at 1:00 pm.
Ron Arnold, Chief Fiscal Officer of the Game & Fish department, explained the new preference point system for non-resident elk, deer and antelope licenses, which was approved by the Commission on July 13, 2005. Beginning in the 2007 hunting season, a non resident hunter may submit fifty dollars for an elk preference point, forty dollars for a deer preference point and thirty dollars for an antelope preference point (ten dollars for youth non resident applicants) in addition to the license fee and application fee in order to receive a preference point if they do not draw a license for their first choice hunting area. Non resident elk, deer and antelope license applicants may alternatively choose to purchase a preference point to increase their odds of drawing in future drawings. Purchase of a preference point only does not require additional submission of a license fee or application fee.
The new system creates a separate pool of non-resident elk, deer and antelope licenses totaling seventy five percent of the available non-resident licenses. From this pool, applicants with the highest number of preference points will be selected first to receive a license. If there are more applicants than licenses, the department will draw only from those applicants with the maximum number of preference points. Once a non resident applicant receives a license in their first choice hunt area, or if they fail to purchase a preference point or apply for a license "during the second calendar year," their preference point total will be returned to zero. This provision applies only to non-resident elk, deer and antelope licenses.
The remaining twenty-five percent of non-resident elk, deer and antelope licenses will be distributed in a drawing that does not reflect any preference point totals. This is the same as the allocation of resident moose and sheep licenses and allows the possibility that an applicant could draw a license on their first try.
While the current drawing system provides that 20% of the antelope and deer licenses and 16% of the elk licenses available will be allocated to non resident hunters, because there are left over license drawings the actual percentage of non residents getting a license after all drawings are conducted has been 18% for elk, 39% for deer and 54% for antelope. (Appendix 10).
Mr. Arnold was asked about the cost of implementing the new preference point system. He estimated that the cost will be between $15,000 and $20,000 but he also stated that applications are expected to increase also. When the preference point system for moose and bighorn sheep was implemented the applications increased by 50%.
Jay Lawson discussed potential preference point systems for resident elk, deer and antelope licenses. A survey was done several years ago indicating that residents showed a preference for not changing the current allocation system. (Appendix 11). He asserted that there may have been a shift in attitude recently and the Game & Fish department is likely to redo the survey in the next few years. He also handed out an article that discussed Colorado's resident preference point system. (Appendix 12). There was discussion about how a preference point system favors older hunters at a time when the department should be encouraging younger people to join the sport. There was also discussion on how the new preference point system will work seamlessly with the regular and special drawings.
Jim Allen, Wyoming Outfitters and Guides Association, testified that outfitters are business people trying to make a living in an unstable field. The instability is caused by the random lottery drawing. When non-resident clients don't draw from year to year, the outfitter loses customers. The industry is operating at 60% of capacity due to this instability. While one outfitter could be operating at 90% of capacity one year, he could be down to 10% the next year, and there is no way to plan ahead for these changes until the drawing is held. Mr. Allen handed out a proposal from the WOGA to establish a closed pool of licenses that would be available only to non-resident hunters who are licensed outfitter clients. (Appendix 13). The hunter would have to provide the license number of the outfitter at the time of application. Currently, 40% of non-resident licenses are drawn through the special drawing where the hunter pays an increased price in order to be in that closed pool. The remaining 60% are drawn in a regular license drawing. WOGA proposes to have 50% of elk licenses allocated to the regular drawing, 10% to the special drawing and 40% to a new category of special drawing that is limited to non-residents who have signed up to use a licensed outfitter. Mr. Allen insisted that this would not be a set aside but rather a "closed pool" of licenses just for outfitted clients. He also testified that the system would not affect resident licenses, would bring in an additional $330,000 per year, and would help control unlicensed outfitting because the hunter would have to supply the license number of the outfitter he will use in order to qualify. He also suggested that the system would not cause an increase in outfitter license applications because the permits to guide on federal lands are already fully utilized.
Dick McGinity, dude rancher and member of the Wyoming Business Council, supported the concept because he believes it would help stabilize small communities that are depending on hunting business. Senator Massie pointed out that the hunters who are currently spending money on hotels and restaurants in small towns would be spending their money on outfitter camps instead, so there would be no net gain to the community. Jim Allen pointed out that outfitted hunters spend three times the amount that do-it-yourself hunters do.
Jay Lawson suggested that the support of the public is the bottom line. He offered to have the Game & Fish department conduct a survey to find out what the public in Wyoming thinks of the idea.
Senator Burns suggested that the distinction between a "closed pool" and a "set aside" is virtually non-existent. There was considerable debate over whether the committee wanted to propose legislation that would benefit a single industry. Mr. Allen suggested that their industry is different than others because the government is not standing at the door of every hardware store holding a lottery for who will be allowed in.
Mark Winland, president of Wyoming Wildlife Federation stated that the committee was sitting on a powder keg when they consider set aside licenses. No task force to date has decided to light the fuse. He stated that resident sportsmen have been adamantly opposed to the concept, and that outfitters had promised not to come back asking for more special treatment after the law creating the special drawing was passed. He also pointed out that wildlife is not an article of commerce, and anytime the state moves toward treating licenses as an article of commerce it makes wildlife becomes a commodity.
The committee received written comments from Eric Adams, a resident sportsman regarding preference point systems for resident hunters. (Appendix 14).
The committee voted to continue to look at making recommendations about better regulation of unlicensed outfitters and the "closed pool" concept brought by the WOGA. The committee voted not to pursue any recommendations regarding a resident preference point system.
The next meeting was set for September 6, 2005 at 9:00am at the Game & Fish Regional Office in Casper.
There being no further business, Chairman Slater adjourned the meeting at 5:00pm.
Respectfully submitted,
Jim Slater, Chairman